State v. RealState v. Real
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- Before:
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¶ 1 After a jury trial, appellant Rafael Real was convicted of four violations of
¶ 2 We view the evidence in the light most favorable to sustaining the convictions. See State v. Newnom, 208 Ariz. 507, ¶ 2, 95 P.3d 950, 950 (App.2004). In November 2003, Pima County Sheriffs Deputy Martinez stopped a vehicle driven by Real for speeding. Real admitted not having a valid driver’s license and exhibited symptoms of intoxication. Deputy Phaneuf, who had responded to Martinez’s request for a DUI expert, administered field sobriety tests, which Real had trouble performing. Phaneuf then arrested and questioned Real, who made incul-patory statements. A blood test performed by a third deputy, Copfer, showed Real’s alcohol concentration (AC) was .190 approximately one-half hour after the stop.
¶3 Before trial, Real sought to preclude Phaneuf from testifying, in part on Sixth Amendment grounds, because Phaneuf had no memory of investigating or arresting Real. The trial court ruled Phaneuf could testify. At trial, Phaneuf testified that he had no independent recollection of investigating and arresting Real and then read from his police report in response to questioning.
¶ 4 Real argues the trial court violated the Sixth Amendment’s Confrontation Clause, as interpreted in
Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), by permitting Phaneuf to read from his police report at trial when Phaneuf testified he had no memory of the events surrounding Real’s arrest.
1
Although we review
¶ 5 The Sixth Amendment to the United States Constitution protects a defendant’s “right ... to be confronted with the witnesses against him.”
¶ 6 That comment by the Supreme Court, although dicta, is consistent with its prior decisions. In United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), the Court addressed the issue of whether a witness’s lack of memory regarding the basis of a prior statement posed a Confrontation Clause problem when the witness testified at trial and was subject to cross-examination. See id. at 555-56, 108 S.Ct. at 840. The declarant in Owens was a corrections officer who experienced memory loss as a result of an attack by the defendant. Id. at 556, 108 S.Ct. at 840-41. At trial, the officer stated he could not remember seeing the defendant attack him, but testified that he could remember identifying the defendant in an interview after the attack. Id. The officer also had difficulty remembering his hospitalization after the attack. Id. The Court held that there was no Confrontation Clause violation because the defendant had the opportunity to, and did, cross-examine the officer. Id. at 559-60, 108 S.Ct. at 842-43; see also Delaware v. Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (“Confrontation Clause is generally satisfied” by opportunity to cross-examine).
¶ 7 Here, similarly, Phaneuf testified that he did not remember the events surrounding Real’s arrest. He stated that he had prepared a “worksheet” in the minutes following the incident and that a transcribed report was prepared within a few hours. He then read from the report in response to questioning. Real cross-examined Phaneuf, availing himself of the tools of cross-examination discussed in Owens. See Owens, 484 U.S. at 559, 108 S.Ct. at 842 (“It is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even ... the very fact that he has a bad memory.”). Under Owens, this procedure presents no Confrontation Clause problem.
¶8 Real nonetheless argues that “it is unclear from
Crawford
whether the [Supreme] Court intended to leave in place all of its prior case law concerning unavailability under the Confrontation Clause.” He emphasizes the Court’s statement in
Crawford
that “[t]he [Confrontation] Clause does not bar admission of a statement so long as the declarant is present at trial to
defend or explain it,”
541 U.S. at 59 n. 9, 124 S.Ct. at 1369 n. 9 (emphasis added), and contends that a declarant who lacks memory of prior events cannot “defend or explain” his statement. But the Court in
Crawford
did not expressly overrule
Owens
or other cases suggesting that there is no Confrontation Clause violation when the court admits prior statements the witness does not remember making, if the witness testifies.
See, e.g., California v. Green,
399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970) (“none of
¶ 9 “We cannot ignore a Supreme Court decision interpreting federal law unless the Court expressly overrules or easts cognizable doubt on that decision.” State v. Ring, 204 Ariz. 534, ¶ 61, 65 P.3d 915, 938 (2003). And, as Real concedes, courts in other jurisdictions that have addressed the issue have concluded Crawford did not affect the continuing validity of Owens. See, e.g., People v. Sharp, 355 Ill.App.3d 786, 292 Ill. Dec. 118, 825 N.E.2d 706, 711 (2005) (Supreme Court in Crawford “neither overruled nor called into question” Fensterer or Owens ); State v. Pierre, 277 Conn. 42, 890 A.2d 474, 500, cert. denied, — U.S. -, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006) (same); see also State v. Tate, 682 N.W.2d 169, 176 n. 1 (Minn.App.2004) (where declarant subject to cross-examination at trial, Crawford does not apply); State v. Carothers, 692 N.W.2d 544, 549 (S.D.2005) (same). Accordingly, we reject Real’s assertion that, by stating in a footnote that a declarant must be able to “defend or explain” his prior statement, the Crawford Court intended to overrule or cast doubt on Owens. 3
¶ 10 Real next contends this case is factually distinguishable from Owens because in Owens the witness lacked memory only as to the prior identification, whereas here, Phaneuf testified to a complete lack of memory of the events surrounding Real’s arrest. But the Supreme Court did not suggest in Owens that the declarant’s retention of some memory of the attack was crucial. Instead, it explained that the opportunity for cross-examination is all the Confrontation Clause protects. Owens, 484 U.S. at 559, 108 S.Ct. at 842; see also State v. Carreon, 210 Ariz. 54, ¶ 36, 107 P.3d 900, 909 (2005), cert. denied, - U.S. -, 126 S.Ct. 122, 163 L.Ed.2d 129 (2005) (“[T]he ‘main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’ ”), quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). The Confrontation Clause does not guarantee that the resulting cross-examination will be effective. Owens, 484 U.S. at 559, 108 S.Ct. at 842. Here, Real had the opportunity to cross-examine Phaneuf, and he did so. Thus, the trial court afforded him the only right the Confrontation Clause provides.
¶ 11 Real further contends Phaneuf was “unavailable” as a witness under
Crawford,
citing Rule 804(a)(3), Ariz. R. Evid., 17A A.R.S. (a declarant who “testifies to a lack of memory of the subject matter of the declarant’s statement” is “unavailable as a witness”). But the Supreme Court has separated the states’ hearsay rules and analysis from the constitutional Confrontation Clause analysis.
See Crawford,
541 U.S. at 68, 124 S.Ct. at 1374. And even if Phaneuf was unavailable as a witness under Rule 804(a)(3), an issue Real did not raise below or here, he testified at trial and was subject to cross-examination.
See id.
at 59 n. 9, 124 S.Ct. at 1369 n. 9 (no Confrontation Clause problem “when the declarant appears for cross-examination at trial”). If Real were correct that the evidentiary definition of unavailability also governed the determination of whether a witness appeared for cross-examination, surely there would have been a Confrontation Clause problem in
Owens,
where the declarant testified to a lack of memory.
Owens,
484 U.S. at 556, 108 S.Ct. at 841;
¶ 12 Real cites
State v. Williams,
889 So.2d 1093 (La.App.2004), in support of his position that Phaneuf was unavailable for cross-examination under
Crawford.
But in
Williams,
¶ 13 Finally, Real contends that permitting officers to read from their police reports when they do not recall the events surrounding preparation of the report will encourage police officers to testify to a lack of memory and “will lead to prosecution by police report, which is precisely what Crawford and the Confrontation Clause are intended to prevent.” We disagree. As Crawford’s extensive historical analysis makes clear, the protection the Confrontation Clause provides is the opportunity to cross-examine the declarant. See Crawford, 541 U.S. at 42-50, 124 S.Ct. at 1359-63. Real had that opportunity here. Furthermore, we perceive little advantage to a police officer falsely claiming that he has no recollection of the events surrounding an arrest, rather than simply refreshing his recollection from his report. Accordingly, we reject Real’s public policy argument.
¶ 14 For the foregoing reasons, Real’s convictions and sentences are affirmed.
CONCURRING: JOHN PELANDER, Chief Judge and GARYE L. VÁSQUEZ, Judge.
Notes
. Real does not contest the admissibility of Pha-neuf s testimony under the recorded recollection hearsay exception.
See
. The state does not contest Real‘s assertion that Phaneuf‘s statements were “testimonial.” See Crawford, 541 U.S. at 68, 124 S.Ct. at 1374 (Confrontation Clause protection applies to testimonial evidence).
. Justice Scalia wrote for the Court in both Owens and Crawford.
. Real also cites United States v. Gardinier, 63 M.J. 531 (A.Ct.Crim.App.2006), in support of his argument. But that case involved the admission of videotaped testimony of a child victim who did not appear at trial, id. at 536-37, and accordingly does not help Real.