State v. Chavez

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA Appellee, v. HERIBERTO CHAVEZ, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/22/2009 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0731 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-006249-001 DT The Honorable Warren J. Granville, Judge AFFIRMED ________________________________________________________________ Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Julie A. Done, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Presiding Judge ¶1 Heriberto Chavez ( Chavez ) appeals his convictions and sentences stemming from a gang-affiliated drive-by shooting in Phoenix on May 31, 2006. FACTS AND PROCEDURAL HISTORY1 ¶2 In conviction, 2004, the prior Phoenix to events Police giving Department s rise Gang to his Enforcement Bureau encountered Chavez in the field as part of its routine effort to gather behavior. intelligence Detective conversation with pursuant Arizona to him, E.M. about testified Chavez Revised gang was members that, designated Statutes and their following a ( A.R.S. ) gang a member section 13- 105(9) (Supp. 2009)2 and Arizona s Gang Member Identification Criteria ( GMIC ) form used by police in the field.3 ¶3 On May 31, 2006, Chavez and two accomplices drove Chavez s mother s car, a maroon Toyota, to a neighborhood near 33rd Street and Van Buren in Phoenix. Chavez was seated in the 1 The applicable standard of appellate review mandates that we view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the jury s verdict. State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). 2 We cite to the current versions of the statutes because the pertinent portions have not been materially amended. 3 An individual must meet two of seven criteria to be a documented criminal street gang member. A.R.S. § 13-105(9). The criteria are: (1) self-proclamation of gang membership; (2) witness testimony or official statement; (3) written or electronic correspondence referencing gang membership; (4) gang paraphernalia or photographs; (5) gang tattoos; (6) display of gang clothing or colors; and (7) any other indicia of street gang membership. Id. 2 rear driver s side seat. The intended targets of the shooting were A.S. and M.E. who were sitting in front of M.E. s parents house. ¶4 M.E. testified at trial that, before the shooting, the car drove by the house four times before it stopped and opened fire. Police estimated that several shots were fired from the driver s side of the vehicle. but M.E. was not hit. A.S. was struck by two bullets A car in the driveway was struck by three bullets. ¶5 M.E. s mother, E.E., returned home while the shooting was in progress. until they were She followed the Toyota for several blocks both stopped at a traffic signal. While stopped, E.E. saw a police officer exiting a gas station and gestured to him that that was the vehicle that had just shot at [her] house. stopped on the The police officer pursued the Toyota until it 32nd Street 202 Freeway on-ramp. The car s occupants, including Chavez, were searched, read their Miranda4 rights, and arrested. ¶6 Soon Phoenix Police after their Department arrest on the crime scene freeway specialist on-ramp, a performed gunshot residue tests on each of the car s occupants. Chavez tested positive for gunshot residue on both his right and left arms, indicating he may have discharged a weapon. 4 See Miranda v. Arizona, 384 U.S. 436, 444 (1966). 3 The car s other occupants each tested positive for residue on only one arm. ¶7 A search of the Toyota revealed a semi-automatic handgun, a gun holster, one bullet shell casing on the back seat where Chavez was seated, a black and white bandana, and a black CD folder inscribed with gang graffiti corresponding to the gang to which Chavez belonged. An investigation of the crime scene revealed two victims, multiple bullet shells trailing north in succession on the street, several drops of blood on the concrete, and a silver Nissan with three bullet holes in its side. A ballistics expert testified that some, though not all, of the bullet shells in the street were conclusively fired by the handgun found in the Toyota.5 ¶8 Chavez was charged by indictment with drive-by shooting, two counts of aggravated assault as to A.S. and M.E., respectively, and assisting a criminal street gang. ¶9 In addition to expert ballistics testimony, several police officers testified at trial, including experts from the Gang Enforcement Bureau. Following the close of evidence, Chavez moved for judgment of acquittal pursuant to Arizona Rule of Criminal Procedure 20. finding substantial The superior court denied the motion, evidence 5 to support the State s The ballistics expert reached a range of conclusions as to the ten bullet shells in evidence; however, none of the shells were conclusively excluded as having been fired from the gun. 4 allegation[s] that Mr. Chavez, as principal or accomplice, was engaged in behavior proscribed by the charges against him. ¶10 A jury found Chavez guilty as charged. He was sentenced to concurrent prison terms of 13.5 years on Count 1, 10.5 years on Counts 2 and 3, and 7.5 years on Count 4 with 417 days of presentence incarceration credit. ¶11 We have jurisdiction Statutes ( A.R.S. ) to Arizona Revised 12-120.21(A)(1) sections pursuant (2003), 13-4031 (2001), and 13-4033(A)(3) (Supp. 2009), and Article 6, Section 9, of the Arizona Constitution. For the following reasons, we affirm. DISCUSSION ¶12 Count 1 of the indictment charged Chavez with drive by shooting, a class two dangerous felony, in violation of A.R.S. § 13-1209 (2001). A person commits drive by shooting by intentionally discharging a weapon from a motor vehicle at a person, another structure. occupied A.R.S § motor vehicle 13-1209(A). Counts or 2 an and occupied 3 of the indictment charged Chavez with aggravated assault as to A.S. and M.E., respectively, both class three dangerous violation of A.R.S. § 13-1204 (Supp. 2009). aggravated assault if the person commits felonies, in A person commits assault by causing serious physical injury to another or if the person uses a deadly weapon or dangerous instrument. 5 A.R.S. § 1204(A)(1) & (2). Count 4 of the indictment charged Chavez with assisting a criminal street gang, a class three dangerous felony, in violation of A.R.S. § 13-2308 (Supp. 2009).6 ¶13 The Sixth Amendment provides that, [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. VI. U.S. Const. amend. The Confrontation Clause prohibits admission of testimonial hearsay in a criminal trial against a defendant unless the proponent of the evidence can show the declarant is unavailable and the defendant had a prior opportunity to cross-examine him or her. State v. Bocharski, 218 Ariz. 476, 486, ¶ 37, 189 P.3d 403, 413 (2008) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). ¶14 The Supreme Court Confrontation Clause is hearsay statements. in Crawford directed Id. at 53. emphasized primarily to that the testimonial Although not defining the term testimonial, the Court identified three formulations of [the] core class of testimonial statements. formulation includes ex parte 6 Id. at 51. in-court testimony The first or its The State contends that the evidence challenged on appeal was elicited to prove that Chavez intended to assist a criminal street gang and therefore pertain to Count 4 exclusively. While we agree that Chavez s convictions on Counts 1 through 3 did not depend on his status as a documented gang member, the challenged evidence relates to Chavez s potential motive to commit all of the charged offenses. We therefore reject the State s position that only Court 4 is at issue on appeal. 6 functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially. Id. (quoting Brief for Petitioner at 23). The second formulation includes extrajudicial statements ... contained in formalized testimonial materials, such as depositions, prior testimony, or confessions. affidavits, Id. at 51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in the judgment)). were made witness The third formulation includes statements that under circumstances reasonably to which believe that available for use at a later trial. would the lead an statement objective would be Id. at 52 (quoting Brief for Nat'l Ass'n of Crim. Defense Lawyers et. al. as Amici Curiae at 3). The Court also included [s]tatements taken by police officers in the course of interrogations as testimonial. ¶15 Two years later, the Supreme Court expanded definition: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the 7 Id. its interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822 (2006). ¶16 This court reviews evidentiary rulings that implicate the Confrontation Clause de novo. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006). ¶17 On appeal, Chavez argues the superior court admitted inadmissible hearsay testimony in violation of the United States Supreme Court s decision in Crawford because he did not have an opportunity to cross-examine witnesses against him in violation of the Confrontation Clause of the Sixth Amendment. Specifically, Chavez argues (1) expert testimony regarding T.A., a documented gang member involved in an April 2006 shooting in which Chavez s accomplices were victims, was inadmissible hearsay and that he did not have an opportunity to cross-examine T.A. in violation of the Confrontation Clause; (2) testimony regarding Chavez fulfilling gang member criteria pursuant to A.R.S. § 13-105(9) was inadmissible hearsay in violation of the Confrontation Clause; and (3) testimony regarding D.B., a documented gang member, was inadmissible hearsay in violation of the Confrontation Clause. We address each of these contentions in turn. Evidence of Chavez s Relationship to T.A. ¶18 Chavez argues the superior court erred in admitting 8 evidence regarding T.A., a documented gang member, who was arrested in connection with an April 2006 drive-by shooting in which Chavez s accomplices were victims. Specifically, the evidence consisted of a photograph of T.A. throwing signs, testimony regarding T.A. s apparent gang affiliation based on the gang signs displayed in the photograph, and testimony regarding a search of T.A. s home in which gang paraphernalia was found. The State s apparent purpose in offering this evidence was to convey that because T.A. belonged to a gang in conflict members with of Chavez s Chavez s gang gang by and because shooting at T.A. disrespected them, Chavez was motivated to commit this shooting in retaliation and to assist or further his criminal street gang, in violation of A.R.S. § 13-2308. ¶19 In overruling Chavez s ongoing objection, the superior court found it is appropriate for the expert to opine on what factors constitute a gang and whether [Chavez s alleged gang] constitute[s] a criminal street gang. The superior court further found the expert can render those opinions based upon hearsay not admitted and that, pursuant to Arizona Rule of Evidence 403, the expert should not opine that any individual is a member of [either gang], except based upon otherwise admitted admissible facts, such as self acknowledgement, gang signs, [or] gang paraphernalia as listed in the definition of 9 criminal street gang member. ¶20 Detective E.M. testified that T.A. was a member of a gang that was a rival of Chavez s gang; T.A. was the perpetrator of a shooting at members or associates of Chavez s gang; and that a photograph of T.A. showed him throwing gang signs for his gang. For some of these opinions, the detective relied on statements made to him by T.A. and others. has held expert's that [f]acts opinion are or data admissible Our supreme court underlying for the the limited testifying purpose of showing the basis of that opinion, not to prove the truth of the matter asserted. Testimony not admitted to prove the truth of the matter asserted by an out-of-court declarant is not hearsay and does not violate the confrontation clause. State v. Rogovich, 188 Ariz. 38, 42, 932 P.2d 794, 798 (1997); See State v. Tucker, 215 Ariz. 298, 315, ¶¶ 61-62, 160 P.3d 177, 194 (2007). ¶21 Similarly, the Supreme Court in Crawford stated that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. 541 U.S. at 59, fn. 9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). Because our supreme court in Rogovich and Tucker has held that facts and data underlying a testifying expert s opinions are not offered for the truth of the matters stated therein and because Crawford, Rogovich, and 10 Tucker confirm that such facts and data are beyond the reach of the Confrontation Clause, we are compelled to reject Chavez s challenges here. ¶22 Chavez was not constitutionally entitled to cross- examine T.A. GMIC Classification ¶23 Chavez argues that testimony about his status as a documented gang member pursuant to the GMIC criteria, A.R.S § 13-105(9), was improperly derived [from] the stealth collection of intelligence unknown and unavailable to gang experts and then used by other gang experts to identify Chavez as a gang member, which, he argues, constitutes inadmissible double or triple hearsay in violation of the Confrontation Clause. We disagree. ¶24 police Detective E.M. testified that Gang Enforcement Bureau officers routinely attempt to gather intelligence by communicating with people and identifying gang members per criteria in A.R.S. § 13-105(9). 2004 Chavez conversation spoke and his to him He further testified that in voluntarily. observations, Detective Based E.M. on that determined that Chavez satisfied multiple GMIC criteria, and as a result, Detective E.M. submitted GMIC documentation, including biographical information and a photo of Chavez, to be included in the police department s database. 11 ¶25 No Confrontation Clause violation occurred Detective E.M. was cross-examined at trial. own out of court statements cannot because Moreover, Chavez s form the basis of a Confrontation Clause challenge by Chavez. Evidence of Association With D.B. ¶26 a D.B. is a documented member of the same gang Chavez is documented association member with of. Chavez D.B. was argues admitted testimony in about violation his of the Confrontation Clause because Chavez did not have an opportunity to cross examine D.B. ¶27 Detective testified that he T.F. has of the extensive Gang Enforcement experience with Chavez s gang and with gang behavior generally. Bureau members of He further testified that he witnessed Chavez and D.B. together and that he made contact already been with them documented simultaneously. by Detective Unaware E.M., Chavez Detective had T.F. independently determined Chavez satisfied at least two of the GMIC criteria. Specifically, Detective T.F. identified (1) a CD case inscribed with graffiti corresponding to the gang D.B. and Chavez belonged to and (2) Chavez s association with D.B., a documented gang member. These GMIC criteria are among those included in A.R.S. § 13-105(9). Detective T.F. filed the GMIC form identifying Chavez as a member of the same gang as D.B. ¶28 Detective T.F. testified on the basis of his personal 12 knowledge, Chavez recollection, and statements. occurred D.B., but and he Consequently, because no opinion did not no of his discuss Confrontation testimonial statements encounter any Clause were of with D.B. s violation admitted and because Detective T.F. himself was subject to cross-examination. See Crawford, 541 U.S. at 51. CONCLUSION ¶29 For the foregoing reasons, we affirm Chavez s convictions and sentences. ____/s/_______________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ___/s/_____________________________ JON W. THOMPSON, Judge ___/s/_____________________________ PATRICK IRVINE, Judge 13

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