State v. Gallegos
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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©; ARCAP 28©; Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ANDRE VALENTINO GALLEGOS, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 09/30/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 09-0653 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200900015 The Honorable John P. Plante, Judge REVERSED AND REMANDED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix Michael Breeze, Yuma County Public Defender, By Edward F. McGee, Deputy Public Defender Attorney for Appellant Tucson D O W N I E, Judge ¶1 Andre Valentino Gallegos appeals his convictions for attempted manslaughter and aggravated felonies and dangerous offenses. assault, both class 3 Gallegos argues that the trial court erred by admitting evidence that he was a convicted felon. For the following reasons, we agree. FACTS AND PROCEDURAL HISTORY ¶2 Gallegos was indicted on one count of attempted first- degree murder and one count of aggravated assault stemming from an altercation during which Gallegos stabbed his uncle with a knife. The State later amended the indictment to allege, for sentence enhancement purposes, that Gallegos had two historical felony convictions from California. ¶3 At trial, Gallegos presented a justification defense, claiming he acted in self-defense after his uncle attacked him. As to the attempted murder count, the jury found Gallegos guilty of the lesser-included offense of attempted manslaughter. It found him guilty as charged of aggravated assault and also found the offenses to be dangerous. 1 A hearing was scheduled on the allegation of prior felony convictions, but the State dismissed 1 The verdict form signed by the jury and the minute entry from July 21, 2009 (the day the verdict was rendered) both state that the offenses were found to be dangerous. The sentencing minute entry, however, erroneously states that the offenses were non-dangerous. We amend the August 19, 2009 sentencing minute entry to reflect that the jury found both offenses to be dangerous in nature. 2 that allegation. The trial court sentenced Gallegos to two concurrent mitigated five-year prison terms, with credit for 233 days of presentence incarceration. ¶4 Gallegos timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033(A)(1) (2010). DISCUSSION ¶5 In convictions, addition the State to alleging gave Gallegos with the felony Gallegos did not testify notice prior of convictions at historical its if trial, intent he but took he felony to impeach the stand. introduced audio/video recording of his interview by the police. an During that interview, Gallegos repeatedly told officers that he feared for his life and used the knife to defend himself only after being choked and pummeled by his uncle, who was almost a foot taller and weighed about twice as much as him. Gallegos also denied being in trouble in California, being in prison, or being a member of a gang. ¶6 The State sought to impeach Gallegos s interview statements by presenting evidence of prior felony convictions, time in prison, and gang membership. the State could introduce evidence The trial court ruled that that Gallegos had been convicted of a felony, but it precluded evidence about time in 3 prison or gang membership. Thereafter, over Gallegos s objection, the court allowed a detective to testify that he had viewed a printout of a computer criminal history with Gallegos s name on it that stated he had a felony conviction from California. ¶7 The next day, Gallegos filed a motion to dismiss. He expanded on his hearsay objection and added a claim that the evidence violated his confrontation rights under the Sixth Amendment and Article 2, Section 24 of the Arizona Constitution. The trial court denied the motion. ¶8 his Gallegos concedes that by introducing the recording of police present interview, evidence he opened impeaching his the door for State to See credibility. the State v. Hernandez, 191 Ariz. 553, 557, ¶ 9, 959 P.2d 810, 814 (1998) (holding non-testifying defendant who offers exculpatory recorded statement is subject to impeachment); Ariz. R. Evid. 806 (permitting impeachment of declarant of hearsay or other out-of-court statement 801(d)(2)(C), (D), testified). One or admitted (E) method in of pursuant same manner impeaching evidence of a felony conviction. to Ariz. as if credibility R. Evid. declarant is with Ariz. R. Evid. 609; see also State v. Malloy, 131 Ariz. 125, 127, 639 P.2d 315, 317 (1981) ( [A]ll felonies have some probative value in determining a witness credibility upon the theory that a major crime entails 4 such an injury to and disregard of the rights of other persons that it can reasonably be expected the witness will be untruthful if it is to his advantage. ). ¶9 When the prosecution seeks to establish a prior conviction, it must prove two facts: (1) that the defendant in the present case and the one convicted in the prior case are the same individual, conviction. 233 certified (2) that there was in fact a prior State v. Nash, 143 Ariz. 392, 403, 694 P.2d 222, (1985). convictions and Absent are copy an proven of a admission by judgment by extrinsic of the defendant, evidence, conviction or such minute prior as a entry, expert comparison of a fingerprint card with a fingerprint on the sentencing minute entry, or photographs of the defendant. Id. A prior conviction from another state may also be proven with certified copies of public records from that state that have the same name, physical description and date of birth as the defendant. State v. Van Adams, 194 Ariz. 408, 419, ¶¶ 36- 37, 984 P.2d 16, 27 (1999). ¶10 We review a trial court s issues for an abuse of discretion. rulings on evidentiary State v. Jones, 197 Ariz. 290, 308, ¶ 47, 4 P.3d 345, 363 (2000). An abuse of discretion occurs in an evidentiary ruling when the decision is clearly untenable, legally incorrect, or amounts to a denial of justice. 5 State v. Arellano, 213 Ariz. 474, 478, ¶ 14, 143 P.3d 1015, 1019 (2006). ¶11 Hearsay is defined 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." Ariz. R. Evid. 801(c). Ariz. R. Evid. 802. Hearsay is not generally admissible. The rationale for the general rule is that it is not possible to cross-examine hearsay. State v. Allen, 157 Ariz. 165, 172, 755 P.2d 1153, 1160 (1988). Without the testing of cross-examination, it is often impossible to assess the weight reasonably to be attached to evidence. without guidance in the record or in common And a trier experience for evaluating the evidentiary worth of particular statements is a trier too free to act at will. 1 Morris K. Udall et al., Arizona Practice: Law of Evidence § 121, at 235 (3d ed. 1991). ¶12 The detective s testimony about Gallegos s prior felony conviction was not based on first-hand knowledge, but was derived from viewing an out-of-court statement to that effect and was specifically offered by the State to prove the truth of that matter. The testimony was thus exception to the hearsay rule applies. inadmissible unless an State v. Bass, 198 Ariz. 571, 577, ¶ 20, 12 P.3d 796, 802 (2000). ¶13 The State contends the testimony was admissible under the public records exception to the hearsay rule. 6 Rule 803 defines public records or reports falling under this exception, in pertinent part, as including records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . matters observed pursuant to [a] duty imposed by law as to which matters there was a duty to report. criminal Ariz. R. Evid. 803(8). history report was The State argues that the collected and maintained by the Arizona Department of Public Safety pursuant to a statutory duty and that it is therefore a public record. See Ariz. Rev. Stat. § 41-1750(A) (Supp. 2009) 2 ( The department is responsible for the effective operation of the central state repository in order to collect, store and disseminate complete and accurate Arizona criminal history records and related criminal justice information. ). ¶14 the The flaw in the State s argument is that nothing in record computerized establishes criminal the requisite history report as foundation a public for the record. There is no evidence as to who collected the information in the report, the source of the information collected, or the manner in which it was collected. The only description of the document provided by the detective was that it s a computer printout of 2 We cite to the current version of statutes when revisions material to this decision have since occurred. 7 no a person s criminal history. Nothing in the record supports the State s claim that the criminal history report was obtained from the record Arizona does satisfied not the 803(8)(B), Department of Public Safety. establish that the requirements for a public that it is the contention exception fails. Because criminal history the report record under Rule admissible under this See State v. Walker, 181 Ariz. 475, 482, 891 P.2d 942, 949 (App. 1995) (holding mere avowal by prosecutor that fingerprint card was a business record of police department was not sufficient to support admission as public record or business record.) ¶15 Moreover, the public and business records exceptions provide only for introduction of the record into evidence. They do not allow a witness to testify as to what the record states. State v. Ceja, 113 Ariz. 39, 41, 546 P.2d 6, 8 (1976). One having oral no independent knowledge cannot establish testimony facts contained in a written record. Id. by Having the detective testify about the contents of the criminal history report was hearsay upon hearsay. Multiple hearsay is not admissible, unless each part of the combined statements meets a recognized exception. 645 P.2d 811, 813 State v. McGann, 132 Ariz. 296, 298 n.1, n.1 (1982); see also Ariz. R. Evid. 805 (permitting hearsay within hearsay where each part conforms with an exception to the hearsay rule). 8 The State does not claim that any hearsay exception applies to the detective s testimony about the contents of the criminal history report. ¶16 evidence, harmless. When we find error in the admission or exclusion of we must further determine whether that error was State v. Anthony, 218 Ariz. 439, 445-46, ¶¶ 38-39, 189 P.3d 366, 372-73 (2008); see also State v. Doerr, 193 Ariz. 56, 64, ¶ 33, 969 P.2d 1168, 1176 (1998) ( [T]his court will not reverse a conviction if an error is clearly harmless. ). Error is harmless only if we can say, beyond a reasonable doubt, that it did not contribute to or affect the verdict. State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Id. (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)). ¶17 Gallegos s justification defense depended on the jury believing statements he made in the police interview about the altercation with his uncle. His credibility was crucial to his defense. hearsay Introduction of evidence that he was a convicted felon clearly could have undercut his credibility in the eyes of the jury. Given the facts of this case, we cannot say beyond a reasonable doubt that the erroneous admission of the hearsay evidence had no impact on the verdicts. 9 See State v. Green, 200 Ariz. 496, 501, ¶ 22, 29 P.3d 271, 276 (2001) (holding that improper admission of prior conviction evidence was reversible error when defendant s credibility was at issue). CONCLUSION ¶18 We reverse Gallegos s convictions and sentences and remand for a new trial. 3 /s/ MARGARET H. DOWNIE, Judge CONCURRING /s/ MAURICE PORTLEY, Presiding Judge /s/ JOHN C. GEMMILL, Judge 3 Based on our determination that the evidence was improperly admitted, we need not separately address Gallegos s contention that it also violated his right of confrontation under the Sixth Amendment and Article 2, Section 24 of the Arizona Constitution. 10
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