State v. De La Rosa
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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. ) ) FERMIN ANTONIO DE LA ROSA, JR, ) ) Appellant. ) ) ) __________________________________) DIVISION ONE FILED: 07-15-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 08-0911 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-109517-001 DT The Honorable John R. Ditsworth, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Robert A. Walsh, Assistant Attorney General Attorneys for Appellee Phoenix Susan Sherwin, Maricopa County Legal Advocate By Frances J. Gray, Deputy Legal Advocate Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Fermin Antonio De La Rosa, Jr., ( defendant ) appeals his conviction and sentence for second degree murder, aggravated assault, drive by shooting, and discharge of a firearm at a structure, on the ground the trial court violated his rights under the Confrontation Clause by admitting statements made by the decedent shortly before his murder. For the reasons that follow, we find no reversible error, and affirm. Factual1 and Procedural History ¶2 The evidence at trial showed that on the night of February 8, 2007, Carlos J. and his girlfriend, Stephanie S., stopped at a traffic light at 40th Street and Southern Avenue in Phoenix. The driver of a white four-door car stopped in the lane next to them and asked Carlos where he had been, and if he was hiding from him. Stephanie recognized the driver s voice as that of defendant, an acquaintance, and saw his face as she looked back through a window. When the light changed and they drove toward Carlos s home near 40th Street and Vineyard Avenue, she and Carlos confirmed that the other driver was defendant. When they reached Carlos s house, they exited his truck and started walking toward the front door. 1 Stephanie saw defendant We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997) (citation omitted). 2 in the same car driving toward the house and said, [T]hat s him again, and Carlos said, [Y]eah, just come on, just keep on walking with me. door, Stephanie Let s go inside. saw defendant When the two were at the point a gun through window of his car and start shooting at them. Carlos to get down. the house, open She yelled to One of the nine or ten shots fired struck the back of Carlos s head and killed him. inside the splintering wood, Other bullets went breaking glass and knickknacks, passing through the refrigerator, and hitting the television. ¶3 Carlos s father testified that immediately after the shooting, Stephanie ran into the house, yelling, It was Fermin, it was Fermin. She told police at the scene, and later that night, that defendant was the shooter, identified a photograph of him, and described the vehicle he had been driving. Two weeks after the shooting, and at trial, she identified a picture of defendant s Chevrolet Impala as the car she saw him driving that night. Three people in the neighborhood who witnessed the shooting also identified a matching the characteristics picture of of the defendant s vehicle immediately before the shots were fired. that Impala as they saw A forensic scientist testified that two of three elements of firearm residue were present in defendant s vehicle, indicating that it was highly probable that a gun had been fired from the vehicle. 3 ¶4 De La Rosa defended on the basis of misidentification and alibi; his girlfriend testified that she saw him waiting in the parking lot of her workplace at the I-10 freeway and Ray Road at the time of the shooting. of second-degree murder as a The jury convicted defendant lesser-included offense of the charged crime of first-degree murder, aggravated assault, drive by shooting, and discharge of a firearm at a structure. The judge sentenced him to prison for a term totaling 25 years. Defendant timely appealed. Discussion ¶5 Defendant argues that the trial court violated his right to confront the witnesses against him when it admitted the decedent s out-of-court statements. Specifically, defendant argues that the court reversibly erred in allowing Stephanie to testify: 1) When they drove away from the traffic light at 40th Street and Southern Avenue, she commented to Carlos, [O]h, that was Fermin, and he responded, [Y]eah, that was him. ; and 2) as they walked to the door of his house, she said, [T]hat s him again, and Carlos responded, [Y]eah, just come on, just keep on walking with me. Let s go inside. The judge ruled that these statements by the decedent were admissible under the present sense impression exception to the prohibition against hearsay. And because they were non-testimonial, the court reasoned that their admission could not violate the Confrontation Clause. 4 We review challenges to the admissibility of evidence under the Confrontation Clause de novo. State v. King, 212 Ariz. 372, 375, ¶ 16, 132 P.3d 311, 314 (App. 2006). ¶6 In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause prohibited the admission of testimonial hearsay from a witness who did not appear at trial, unless the proponent could show that the declarant was unavailable to testify, and that the defendant had had a prior opportunity to cross-examine him. See id. at 68. It is the testimonial character of the statement that separates it from other limitations hearsay on that, hearsay while evidence, subject is not to traditional subject to the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 821 (2006). ¶7 The Court declined to provide a comprehensive definition of testimonial, but it noted that testimony is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. U.S. at 51 (citation omitted) (alteration Crawford, 541 in original). Statements taken during a police interrogation are testimonial for purposes of the Confrontation Clause when there is no . . . ongoing emergency, and . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 5 Davis, 547 U.S. at 822. As the Court explained in Crawford, An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. 541 U.S. at 51. considered non-testimonial circumstances requiring A statement to police, however, is when assistance it describes and is not current designed primarily to establis[h] or prov[e] some past fact. Davis, 547 U.S. at 827 (alterations in original). ¶8 The question of whether a statement is testimonial is a factually driven inquiry and must be determined on a caseby-case basis. State v. Alvarez, 213 Ariz. 467, 471, ¶ 14, 143 P.3d 668, 672 (App. 2006) (quoting State v. Parks, 211 Ariz. 19, 28, ¶ 43, 116 P.3d 631, 640 (App. 2005)). facts bearing on the confrontation issue in We review the the light favorable to the proponent of the challenged evidence. most Id. at 468, ¶ 3, 143 P.3d at 669. ¶9 We find that the statements at issue in this case were not testimonial as contemplated by Crawford because whatever the victim s intent in confirming defendant s identity to his girlfriend, he did not make these remarks for the purpose of establishing murderer. or proving some past fact at the trial of his In the first instance, Carlos simply confirmed to Stephanie that the other driver who had confronted him at the stoplight was defendant; in the second, he confirmed that it was 6 again defendant driving toward the house and suggested that she keep on walking with me and [l]et s go inside. In each case, Carlos made the remarks privately -- to Stephanie, before any crime had occurred -- simply for the purpose of informing her of what was happening, and, in the case of the latter remarks, what to do about it. ¶10 The circumstances in this case are like those in State v. Damper, 223 Ariz. 572, 225 P.3d 1148 (App. 2010). In Damper, shortly before her murder, the victim sent a text message to a girlfriend asking, Can you come over? Me and Marcus are fighting and I have no gas. Id. at 574, ¶ 6, 225 P.3d at 1150. The defendant argued on appeal that a text message is by nature testimonial, and because there had been a previous domestic violence incident between himself and the sender, the sender had intended this particular text message to serve as a record of the argument. Id. at 575, ¶ 11, 225 P.3d at 1151. We rejected both arguments, finding that text messages are not necessarily testimonial, and the text message at issue was not testimonial because the content and circumstances demonstrated that it was not sent for the purpose of establishing or proving some fact. Id. at 575-76, ¶ 12, 225 P.3d at 1151-52. the circumstances Stephanie suggest establishing or nor the that they were some fact. proving content 7 of made Similarly, neither Carlos s remarks to for purpose of See id. the These casual remarks were not testimonial statements, and therefore, their admission at trial did not violate the Confrontation Clause. ¶11 The essence of defendant s argument appears to be that we should ignore or overrule the holding of Crawford to the effect that the Confrontation Clause protects a defendant only against the witnesses, admission and of traditional testimonial evidentiary hearsay rules from are absent adequate to protect against the admission of non-testimonial hearsay from absent witnesses. See Crawford, 541 U.S. at 68. Defendant argues that we should find that his rights were violated simply because he was unable to cross-examine statements were used against him. a key witness We fail to find any ground on which the holding of Crawford would not apply in this case. 8 whose Conclusion ¶12 For the foregoing reasons, we affirm appellant s conviction and sentence. /S/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /S/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /S/ ____________________________________ DANIEL A. BARKER, Judge 9
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