State of Arizona v. Richard Lee PalmerState of Arizona v. Richard Lee Palmer
Lead Opinion
¶ 1 After a jury trial, appellant Richard Palmer was convicted of possessing nine grams or more of methamphetamine for sale. Palmer admitted having one historical prior felony conviction, and the trial court sentenced him as a category two repetitive offender to a mitigated prison term of 4.5 years. On appeal, Palmer maintains (1) the court erred in allowing inadmissible hearsay evidence over his objection, (2) the admission of hearsay was not harmless, and (3) there was insufficient evidence to support his conviction. For the following reasons, we affirm.
Background
¶ 2 We view the facts, and reasonable inferences from the facts, in the light most favorable to sustaining the jury’s verdict. State v. Haight-Gyuro,
Discussion
Admission of Hearsay
¶ 3 We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. Id ¶ 7. In opening statements, the prosecutor told the jury the evidence would show B.C. had “inventorie[d] the things ... brought in” with Palmer, including his “clothing, shoes, wallet, those types of things”; she had found the baggie containing methamphetamine in Palmer’s right front pants’ pocket; and she had given the baggie to a police officer. In contrast, Palmer told the jury the evidence would establish B.C. had found the baggie in a backpack near the door of Palmer’s trauma bay and gave it to hospital security personnel, and two women later “c[a]me up and [went] through the backpack and t[ook] the backpack away.” According to Palmer’s opening statement, the methamphetamine
didn’t come from anybody’s pants. It didn’t come from [Palmer,] and [B.C.] never had a conversation with [him] about the backpack, about who owned it or about this baggie. All she knows is that two women came in and took the backpack away and it’s gone. There’s nothing ... [to] show Mr. Palmer was in possession of any drugs, dangerous or otherwise.
¶ 4 At trial, B.C. testified she had discovered the baggie containing methamphetamine
¶ 5 During redirect examination, the state asked B.C. about the two women who had removed the backpack from the trauma bay and referred her to the transcript of her earlier interview with the state and defense counsel. Palmer’s counsel objected, explaining to the trial court that he was “anticipating ... hearsay,” because the portion of the interview transcript identified had included B.C.’s report of what the women had said. Despite no ruling from the court, the state acknowledged counsel’s concern and the following ensued:
Q.....And going back again, you had told this jury that two women had come in to take the backpack. Did they ask, without telling me what they said, did they ask Mr. Palmer about taking the backpack? A. I can recall they asked, where is your backpack.
Following B.C.’s answer, Palmer renewed his objection, saying “Judge, I would object,” and the court, stating “it’s not offered for the truth of the matter stated,” overruled the objection. B.C. then repeated, “I recall them asking where his backpack was.”
¶ 6 On appeal, Palmer argues the trial court erred in allowing B.C.’s testimony about what the women said before they took the backpack, contending that, although phrased as a question, their words “con-taine[d] an assertion ... that the backpack belonge[d] to Mr. Palmer,” and were “analytically no different than had the women said, ‘We are taking your backpack.’ ” The state responds that Palmer “opened the door” to B.C.’s testimony by asking about the women who removed the backpack from the trauma bay and, therefore, cannot assign error to the admission of their statements;
¶ 7 The statement the women made was not intended as an assertion and thus was not inadmissible hearsay. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
¶ 8 Like the court in Chavez, we find reference to federal authority instructive. See id. ¶¶7-9. Commenting on
¶ 9 In State v. Carrillo,
¶ 10 Here, as B.C. testified, two women appeared at Palmer’s trauma bay, and asked where his backpack was. At that time no backpack as yet had been identified. They then left with the backpack. This testimony suggested the women “acted as [they] did because of [their] belief in the existence of the condition sought to be proved,”— Palmer’s ownership of the backpack-and their belief gave rise to an inference the backpack belonged to Palmer.
Insufficient Evidence
¶ 11 Palmer also argues evidence that the backpack containing the methamphetamine belonged to him was nothing more than “conjecture or suspicion” and was insufficient to support the jury’s verdict. “When considering claims of insufficient evidence, we view the evidence in the light most favorable to sustaining the verdict and reverse only if no substantial evidence supports the conviction.’ ” State v. Fimbres,
¶ 12 Here, B.C.’s testimony that she saw the backpack brought into Palmer’s trauma bay as a normal part of the transfer of a patient’s property from the ambulance that transported him to the hospital is eir-cumstantial
Disposition
¶ 13 For the foregoing reasons, we affirm Palmer’s conviction and sentence.
Notes
. Because we determine the evidence was not hearsay, we need not address this argument.
. The version of
. Because we find no error, we need not address Palmer's argument that any error was not harmless.
Dissenting Opinion
dissenting.
¶ 14 The verdict in this ease turned on whether the jury could conclude beyond a reasonable doubt that a certain backpack containing methamphetamine, located in an emergency room bay, belonged to the defendant. To secure that verdict, the state elicited the express assertion of a nameless female declarant that the backpack was Palmer’s.
¶ 15 Our rules define “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
¶ 16 On the record before us, there can be little dispute that the state offered that assertion to prove the truth of the declarant’s belief — that the backpack for which she was searching, and that she departed with, belonged. to Palmer. Indeed, the state has not offered any other plausible purpose for which it would need to elicit that portion of the declarant’s utterance.
¶ 17 Citing Chavez,
¶ 18 In Chavez, Division One of our court held that a series of text messages left on the defendant’s phone, apparently inquiring about the purchase of methamphetamine, were nonhearsay because they were not offered for the truth of the matters directly asserted therein — that the declarants wanted to purchase drugs.
¶ 19 By contrast, the words chosen by the declarant here, “your backpack,” themselves conveyed the declarant’s belief that the backpack she sought belonged to Palmer. This is a crucial distinction. As the advisory note emphasizes: “It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion.”
¶ 20 That the utterance here qualifies as hearsay finds further support in both the logic of the federal advisory note approach and the broader purpose of the hearsay rule. Commentators have explained the rationale for the advisory note approach as follows:
A principal reason for excluding hearsay is that the veracity of the declarant cannot be tested by cross-examination. In the ease of non-assertive acts, the actor by definition does not intend to make an assertion, meaning that the risk of insincerity is substantially diminished. The actor is at least not trying to lie.
4 Stephen A Saltzburg et al., The Federal Rules of Evidence Manual § 801.02[l][c], at 801-14 (8th ed. 2002). But when, as here, the declarant had chosen words that directly convey the assertion that the backpack belonged to Palmer, the risk of insincerity is not diminished in the least. Indeed, the declarant’s arrival at the emergency room with the exclusive focus on locating and departing with the backpack strongly suggests the declarant was aware that the backpack contained methamphetamine. Given that the declarant inquired about the backpack in the presence of hospital staff, her motivation to verbally distance herself from ownership of the backpack is apparent. Thus, the importance of cross-examination to test the sincerity of the assertion here is heightened rather than diminished.
¶ 21 Nor can the characterization of the assertion as nonhearsay be harmonized with the core purpose of the hearsay rule. That purpose is to preserve an “ ‘Anglo-American system of law’ ” premised on the assumption that litigants will meet their burdens of proof and prevail on factual disputes by presenting evidence through witnesses under oath, subject to cross-examination and assessment of
“For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.”
Id. at 93,
The minimization of the dangers of misper-ception, misremembering, insincerity and ambiguity by cross-examination is the essential basis of the hearsay rule. The general requirement that a witness offer his information from the witness stand before the trier, however, serves two other purposes, as well. It requires the taking of an oath impressing the witness with the solemnity and importance of the occasion. The risks of conscious or unconscious exaggeration are thereby reduced. In addition, the trier is able to observe the demeanor of the witness as an aid to assessing his credibility.
1 Joseph M. Livermore et al., Arizona Practice: Law of Evidence § 801.1, at 303 (4th ed. 2000).
¶ 22 In this ease, arguably the most important piece of evidence marshaled by the state to demonstrate Palmer’s ownership of the backpack was the assertion of an unnamed woman, under suspicious circumstances, that he owned it.
¶ 23 The majority reasons that “the women ‘acted as [they] did because of [their] belief in the existence of the condition sought to be proved,’ — Palmer’s ownership of the backpack — and their belief gave rise to an inference the backpack belonged to Palmer.” Supra ¶ 10, quoting
¶ 24 My colleagues also observe that at the time the declarant spoke, “no backpack as yet had been identified,” and therefore the utterance could not have been a “statement about the backpack that contained the drugs.” Supra ¶ 10. The reasoning suggests that the specific meaning of the utterance itself was contingent on the declarant’s subsequent actions, and therefore the meaning of the utterance must be inferred from context. Indeed, in the absence of any context, the phrase “your backpack” asserts very little meaning. In the absence of any factual context, we cannot know who the declarant is addressing and therefore who she claims owns the backpack. Nor, in the absence of context, do we know which backpack she seeks to locate. But these observations give us little guidance in assessing whether the utterance in question is assertive and therefore hearsay under the federal advisory approach. All communication, both hearsay and nonhearsay, gains its meaning from its factual context and almost all spoken exchange depends on context to be understood. See David Crystal, The Cambridge Encyclopedia of Language 106 (3d ed. 2010) (hereinafter Cambridge Encyclopedia) (meaning of verbal communication determined by “analyses of the way words and sentences are used in specific contexts”); see also David Crystal, A Dictionary of Linguistics and Phonetics 87 (4th ed. 1997) (“Words, it is suggested, have meaning only when seen in context.”). Were we to conclude that an utterance ceases to be an assertion merely because the utterance is dependent on context for its meaning, there would be few, if any, utterances that would qualify as assertions under the rule.
¶ 25 For example, in the context of a homicide ease, we would not characterize the statement of an out-of-court declarant, “You killed my brother,” as nonhearsay simply because the declarant may have had more than one brother or because the words themselves do not clarify who the declarant is aeeusing. Rather, we presumably know from the context of the ease that the declarant is referring to the brother whose death is the topic of the case and claiming the person whom she is addressing caused the death. Here, similarly, the context of the instant case readily clarifies which backpack the de-clarant sought and to whom she claimed it belonged. In neither ease does our recourse to the context of the utterances demonstrate that the respective declarants did not specifically intend to assert precisely the meaning conveyed by their words. See
¶ 26 Put in terms of
¶ 27 Nor does the pertinent utterance here become nonhearsay merely because it was embedded in the question, “[W]here is your backpaek[?]” As the highest court of Maryland has pointed out, “The grammatical form of an utterance does not control whether the words are hearsay.” Stoddard v. State, 389
¶ 28 As explained above, the pertinent utterance in this case is hearsay even under the narrow approach set forth in the federal advisory committee note to the Federal Rules of Evidence. I am less confident that our supreme court has adopted that approach or should do so. In Chavez, this court reasoned that because our rule of evidence defining hearsay was adopted verbatim from its counterpart in the federal rules, compare
¶ 29 In short, our supreme court has neither expressly adopted nor rejected the federal advisory note approach to defining which statements are subject to hearsay analysis. That approach has substantial implications for the scope of the hearsay rule. As seen below, its rationale has been subject to considerable criticism by commentators and it has been rejected after thorough analysis by several jurisdictions. For those reasons, I would submit that our supreme court’s ultimate verdict should depend not on whether our rules of evidence have generally paralleled the federal rules — but rather on a careful analysis of whether the federal advisory note sets forth the most appropriate framework for the presentation of evidence in Arizona
¶ 30 The bulk of the commentary provided in the federal advisory note is not controversial. It provides a coherent framework for evaluating when conduct alone constitutes the functional equivalent of a hearsay statement. See
¶ 31 Under the common law approach, by-contrast, courts distinguish which “implied” assertions can be characterized as hearsay based on the purpose for which the pertinent declaration is offered by its proponent. See Stoddard, 887 A.2d at 571. For example, if an out-of-court declaration is offered to demonstrate the truth of the implied belief expressed therein, it is characterized as hearsay and is presumptively inadmissible regardless of whether the declarant specifically intended to assert that particular belief See id. However, if the declaration in question is not offered to show the truth of the implied belief, but for some other purpose, it is nonhearsay. See id; see also
¶ 32 As observed above, advocates for the federal advisory note approach explain that an unintended implied assertion is more reliable because the declarant has not chosen to express the belief in question — and we can therefore presume the sincerity of that belief. See Saltzburg et al., supra ¶ 20, at 801-14; see also
¶ 33 But, the hearsay rule is designed to facilitate adversarial testing of more than the sincerity of an out-of-court declarant’s beliefs. Placing declarants under oath and subjecting their beliefs to cross-examination also minimizes “the dangers of misperception, misremembering ... and ambiguity,” reduces the risks of exaggeration, and allows the credibility of the witnesses to be assessed not just from the nature of the words expressed but also from their demeanor on the witness stand. Livermore et al., supra ¶ 21, at 303 (itemizing purposes of hearsay rale). And, in many civil and criminal cases, it is the accuracy, not the sincerity, of the witnesses’ beliefs that are at the center of the dispute.
¶34 Moreover, implied assertions, when not intended, arguably impose greater risks of inaccuracy and ambiguity given that the declarant did not mindfully intend to express, and did not specifically articulate, the belief in question. See Ronald J. Bacigal, Implied Hearsay: Defusing the Battle Line Between Pragmatism and Theory, 11 S. 111. U.L.J. 1127,1132 (1987) (observing that “unintended implied assertions are inherently more ambiguous”);
[E]ven the danger of insincerity may continue to be present in those instances where the reliability of the direct assertion may be questioned. If the expressed assertion is insincere, such as a fabricated story, the implied assertion derived from the expressed assertion will similarly be unreliable. Implied assertions can be no more reliable than the predicate expressed assertion.
State v. Dullard,
¶ 35 Thus, the unintended nature of an assertion does not necessarily reduce concerns about its sincerity — at least as to those declarants whose credibility we would most want to test through cross-examination. At best, then, the federal advisory note approach is a blunt tool for analyzing the sincerity of unintended assertions. At worst, it risks exempting from adversarial testing pivotal assertions which may pose substantial concerns about accuracy and ambiguity — and which beg for testing and clarification by cross-examination under oath.
¶ 36 Of course, there are also many circumstances when the reliability of an assertion, direct or implied, is so elevated, and the need for cross-examination so diminished, that enforcement of the hearsay rule becomes an unnecessary impediment to the efficient operation of our courts. See Liver-more et al., supra ¶21, at 344 (acknowledging exclusion of all hearsay “would exact too high a price on the just resolution of disputes”). Indeed, the federal advisory note appears to justify its approach in part on that basis. See
¶ 37 But, to that purpose, our supreme court has promulgated rules that recognize numerous exceptions to the exclusion of hearsay. Those rules include catch-all provisions that generally allow for the admissibility of hearsay when the assertion carries “equivalent circumstantial guarantees of trustworthiness” and is “more probative ... than any other evidence which the proponent can procure through reasonable efforts.” See
¶38 Under either the common law approach or the federal advisory committee note approach, the pertinent utterance here, “[W]here is your baekpaek[?]” contains but one assertion: that the backpack the declar-ant sought belonged to Palmer. But, as discussed, it is a pivotal assertion in the context of the case. For the reasons stated above, I would conclude the trial court erred in characterizing the statement as nonhear-say and that the error was not harmless. I would therefore vacate the conviction and remand the ease for a new trial. For the reasons set forth above, supra n. 7, I agree with my colleagues that the state presented sufficient circumstantial evidence of Palmer’s connection to the backpack to survive a motion for judgment of acquittal.
. According to B.C., the statement was uttered by "women” who visited the emergency room— but because we are dealing with only one statement, we can infer that only one of the two women spoke.
. The state has argued that admitting the statement was necessary to explain the circumstances under which the women took the backpack. But no rule of evidence prevented the state from eliciting that the women addressed Palmer before departing with the backpack. Indeed, the prosecutor initially attempted to elicit the declar-ant’s conduct in addressing Palmer without eliciting the content of her words. Thus, the state has not explained how the specific words "your backpack” could be logically offered for any other purpose than to prove the backpack belonged to Palmer.
. The state’s only other evidence suggesting the backpack belonged to Palmer was B.C.'s testimony that the paramedics, as a matter of regular procedure, transport the personal items of patients from the accident scene and deliver those items to the emergency bays where the patients are treated. The state, however, declined to call the specific paramedics involved in this case to address where they found the backpack at the accident scene involving Palmer's motorcycle, why they believed it belonged to Palmer, or whether the seriously injured Palmer had indicated to them that it belonged to him. I would conclude such circumstantial evidence was sufficient to survive a motion for judgment of acquittal. However, given the chaotic nature of both accident scenes and hospital emergency rooms, I am skeptical a jury would necessarily have found Palmer guilty beyond a reasonable doubt on such evidence alone.
. Many commonly used words in every language are inherently dependent of context for meaning, including pronouns such as "your.” See Cambridge Encyclopedia, supra ¶ 24, at 110 (discussing deictic words that "can be interpreted only with reference to the speaker’s position in space or time” and describing categories of such words as personal, spatial, and temporal).
. A line of federal cases posit that an "inquiry” is not an assertion and accordingly cannot be a hearsay statement. See United States v. Wright,
. The majority observes that the revised wording of
. For example, the sincerity of important categories of witnesses — such as innocent bystander witnesses to crimes and accidents, expert witnesses, most law enforcement officers, and financial and accounting witnesses as to damages in civil cases to name a few — are seldom in serious dispute. But the reliability and accuracy of such witnesses’ observations and beliefs are often in dispute and can be pivotal to the outcome of cases.
. The catch-all provisions for
. For example, the implied assertions from the text messages at issue in Chavez — that Chavez possessed drugs for sale — are reliable not because those assertions were not specifically intended but rather because there were several such declarants (reducing the risk any declarant had sent a text message to the wrong number or had been erroneously referred to Chavez), because the content of the requests exposed the declarants to. potential criminal liability (and therefore had indicia of reliability analogous to the co-conspirator and statement against interest exceptions to the hearsay rule), and because those text messages were directed at a person who had a significant quantity of methamphetamine, coupled with packaging materials, in his possession. See generally