FILED BY CLERK IN THE COURT OF APPEALS JUN 29 2007 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) Appellee, ) 2 CA-CR 2006-0324 ) DEPARTMENT A v. ) ) OPINION MICAH S. BENNETT, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20060152
Honorable Edgar B. Acuña, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General By Randall M. Howe and Eric J. Olsson Tucson Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender By Robb P. Holmes Tucson Attorneys for Appellant
V Á S Q U E Z, Judge. ¶1 A jury found appellant Micah S. Bennett guilty of aggravated driving under
the influence of intoxicating liquor (DUI) and aggravated driving with a blood alcohol
concentration of .08 or more, both while his driver’s license was suspended and revoked,1
and fleeing from a law enforcement vehicle. After finding that Bennett had two prior
aggravated DUI convictions, the trial court sentenced him to enhanced, concurrent,
presumptive prison terms, the longest of which were ten-year terms. The sole issue Bennett
raises in this appeal is whether the admission of records of his prior convictions without
testimony from the person who had prepared them and signed the attached authenticating
affidavit2 violated his rights under the Confrontation Clause of the Sixth Amendment3 as
explained in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Finding no
violation of Bennett’s Confrontation Clause rights, we affirm.
¶2 The facts underlying Bennett’s convictions are not relevant to the issue raised
in this appeal. Thus, we do not set them out here. The state alleged at the commencement
of the case, pursuant to A.R.S. § 13-604, that Bennett had two prior felony convictions for
sentence enhancement purposes. “In order to prove a prior conviction, the state must submit
1 The parties stipulated that Bennett’s license was both suspended and revoked on the date of the offenses. 2 It appears that one person, a correctional records clerk, prepared at least some of the records, while a different person, a correctional records supervisor, signed the affidavit attached to all the records.
The Confrontation Clause guarantees that, “[i]n all criminal prosecutions, the 3
accused shall enjoy the right to . . . be confronted with the witnesses against him.” U.S. Const. amend. VI.
2 positive identification establishing that the accused is the same person who previously was
convicted, as well as evidence of the conviction itself.” State v. Cons, 208 Ariz. 409, ¶ 16,
94 P.3d 609, 615 (App. 2004).
¶3 At the bench trial on the allegations of Bennett’s prior convictions, the state
offered into evidence an exhibit comprised of an “automated summary report,” which
contained identifying information about Bennett and reflected convictions in two different
Pima County cause numbers; Bennett’s photographs; and his fingerprint record, all attached
to an affidavit from a correctional records supervisor attesting the documents were true and
correct copies of documents contained in the Arizona Department of Corrections (DOC)
master record file. 4 Bennett objected, arguing the affidavit attached to the records was
inadmissible because it was testimonial and, thus, “violates Crawford.” The trial court
overruled the objection and admitted the exhibit.5 Bennett argues on appeal this ruling was
erroneous.
4 Certified copies of public records are self-authenticating under Rule 902(4), Ariz. R. Evid., 17A A.R.S., as long as they bear the required certification. Bennett does not challenge the affidavit or the records on authenticity grounds. 5 In conjunction with this exhibit, which the state used to establish Bennett’s identity as the same person with the prior convictions, the state also offered into evidence certified copies of court records as evidence of Bennett’s prior convictions themselves. Bennett objected to the court records on the ground “the validation of the seal itself [w]as not complete” and, therefore, the certifying deputy clerk “should be called in to testify” that he had indeed certified the records. The trial court overruled that objection and admitted the exhibit comprised of the court records. Bennett does not reurge that argument on appeal, and he did not challenge those documents on Confrontation Clause grounds.
3 ¶4 We generally review a trial court’s ruling on the admissibility of evidence for
a clear abuse of discretion. State v. King, 213 Ariz. 632, ¶ 15, 146 P.3d 1274, 1278 (App.
2006). However, we review de novo challenges to admissibility based on the Confrontation
Clause. Id. As this court recently noted in King, the Supreme Court in Crawford “held that
the Confrontation Clause prohibits the admission of testimonial evidence from a declarant
who does not appear at trial unless the declarant is unavailable and the defendant had a
prior opportunity to cross-examine the declarant.” 213 Ariz. 632, ¶ 17, 146 P.3d at 1279,
citing Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.
¶5 The Court in Crawford declined “to spell out a comprehensive definition of
‘testimonial.’” 541 U.S. at 68, 124 S. Ct. at 1374. However, the Court described testimony
as “typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or
proving some fact.’” Id. at 51, 124 S. Ct. at 1364, quoting 2 Noah Webster, An American
Dictionary of the English Language (1828). Crawford further described the “core class
of ‘testimonial’ statements” as those “pretrial statements that declarants would reasonably
expect to be used prosecutorially.” Id. We held in King that prior conviction records are
not testimonial because “[c]onvictions are not recorded exclusively in anticipation of future
litigation for the purpose of establishing facts contained in those records.” 213 Ariz. 632,
¶ 24, 146 P.3d at 1280. To the extent Bennett suggests that King was wrongly decided, we
decline to revisit our holding in that case.
4 ¶6 This does not end our inquiry however, because Bennett also asserts that his
case is distinguishable from King because “the affidavit authenticating his prior conviction
documents was testimonial in nature.” He points to the language in Crawford describing
testimony as “‘extrajudicial statements . . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or confessions.’” 541 U.S. at 51-52, 124 S.
Ct. at 1364, quoting White v. Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 747 (1992)
(Thomas, J., concurring in part and concurring in judgment). Although we did not address
this argument in King, there we did cite with approval the finding in People v. Shreck, 107
P.3d 1048, 1060-61 (Colo. Ct. App. 2004), that affidavits accompanying documents
showing a defendant’s prior convictions are not testimonial statements. 213 Ariz. 632, ¶ 20,
146 P.3d at 1279. The court in Shreck noted:
Crawford applies to out-of-court statements by witnesses who would have testified at trial to past events or facts, but are attempting to testify ex parte through an affidavit in lieu of live testimony.
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FILED BY CLERK IN THE COURT OF APPEALS JUN 29 2007 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) Appellee, ) 2 CA-CR 2006-0324 ) DEPARTMENT A v. ) ) OPINION MICAH S. BENNETT, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20060152
Honorable Edgar B. Acuña, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General By Randall M. Howe and Eric J. Olsson Tucson Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender By Robb P. Holmes Tucson Attorneys for Appellant
V Á S Q U E Z, Judge. ¶1 A jury found appellant Micah S. Bennett guilty of aggravated driving under
the influence of intoxicating liquor (DUI) and aggravated driving with a blood alcohol
concentration of .08 or more, both while his driver’s license was suspended and revoked,1
and fleeing from a law enforcement vehicle. After finding that Bennett had two prior
aggravated DUI convictions, the trial court sentenced him to enhanced, concurrent,
presumptive prison terms, the longest of which were ten-year terms. The sole issue Bennett
raises in this appeal is whether the admission of records of his prior convictions without
testimony from the person who had prepared them and signed the attached authenticating
affidavit2 violated his rights under the Confrontation Clause of the Sixth Amendment3 as
explained in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Finding no
violation of Bennett’s Confrontation Clause rights, we affirm.
¶2 The facts underlying Bennett’s convictions are not relevant to the issue raised
in this appeal. Thus, we do not set them out here. The state alleged at the commencement
of the case, pursuant to A.R.S. § 13-604, that Bennett had two prior felony convictions for
sentence enhancement purposes. “In order to prove a prior conviction, the state must submit
1 The parties stipulated that Bennett’s license was both suspended and revoked on the date of the offenses. 2 It appears that one person, a correctional records clerk, prepared at least some of the records, while a different person, a correctional records supervisor, signed the affidavit attached to all the records.
The Confrontation Clause guarantees that, “[i]n all criminal prosecutions, the 3
accused shall enjoy the right to . . . be confronted with the witnesses against him.” U.S. Const. amend. VI.
2 positive identification establishing that the accused is the same person who previously was
convicted, as well as evidence of the conviction itself.” State v. Cons, 208 Ariz. 409, ¶ 16,
94 P.3d 609, 615 (App. 2004).
¶3 At the bench trial on the allegations of Bennett’s prior convictions, the state
offered into evidence an exhibit comprised of an “automated summary report,” which
contained identifying information about Bennett and reflected convictions in two different
Pima County cause numbers; Bennett’s photographs; and his fingerprint record, all attached
to an affidavit from a correctional records supervisor attesting the documents were true and
correct copies of documents contained in the Arizona Department of Corrections (DOC)
master record file. 4 Bennett objected, arguing the affidavit attached to the records was
inadmissible because it was testimonial and, thus, “violates Crawford.” The trial court
overruled the objection and admitted the exhibit.5 Bennett argues on appeal this ruling was
erroneous.
4 Certified copies of public records are self-authenticating under Rule 902(4), Ariz. R. Evid., 17A A.R.S., as long as they bear the required certification. Bennett does not challenge the affidavit or the records on authenticity grounds. 5 In conjunction with this exhibit, which the state used to establish Bennett’s identity as the same person with the prior convictions, the state also offered into evidence certified copies of court records as evidence of Bennett’s prior convictions themselves. Bennett objected to the court records on the ground “the validation of the seal itself [w]as not complete” and, therefore, the certifying deputy clerk “should be called in to testify” that he had indeed certified the records. The trial court overruled that objection and admitted the exhibit comprised of the court records. Bennett does not reurge that argument on appeal, and he did not challenge those documents on Confrontation Clause grounds.
3 ¶4 We generally review a trial court’s ruling on the admissibility of evidence for
a clear abuse of discretion. State v. King, 213 Ariz. 632, ¶ 15, 146 P.3d 1274, 1278 (App.
2006). However, we review de novo challenges to admissibility based on the Confrontation
Clause. Id. As this court recently noted in King, the Supreme Court in Crawford “held that
the Confrontation Clause prohibits the admission of testimonial evidence from a declarant
who does not appear at trial unless the declarant is unavailable and the defendant had a
prior opportunity to cross-examine the declarant.” 213 Ariz. 632, ¶ 17, 146 P.3d at 1279,
citing Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.
¶5 The Court in Crawford declined “to spell out a comprehensive definition of
‘testimonial.’” 541 U.S. at 68, 124 S. Ct. at 1374. However, the Court described testimony
as “typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or
proving some fact.’” Id. at 51, 124 S. Ct. at 1364, quoting 2 Noah Webster, An American
Dictionary of the English Language (1828). Crawford further described the “core class
of ‘testimonial’ statements” as those “pretrial statements that declarants would reasonably
expect to be used prosecutorially.” Id. We held in King that prior conviction records are
not testimonial because “[c]onvictions are not recorded exclusively in anticipation of future
litigation for the purpose of establishing facts contained in those records.” 213 Ariz. 632,
¶ 24, 146 P.3d at 1280. To the extent Bennett suggests that King was wrongly decided, we
decline to revisit our holding in that case.
4 ¶6 This does not end our inquiry however, because Bennett also asserts that his
case is distinguishable from King because “the affidavit authenticating his prior conviction
documents was testimonial in nature.” He points to the language in Crawford describing
testimony as “‘extrajudicial statements . . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or confessions.’” 541 U.S. at 51-52, 124 S.
Ct. at 1364, quoting White v. Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 747 (1992)
(Thomas, J., concurring in part and concurring in judgment). Although we did not address
this argument in King, there we did cite with approval the finding in People v. Shreck, 107
P.3d 1048, 1060-61 (Colo. Ct. App. 2004), that affidavits accompanying documents
showing a defendant’s prior convictions are not testimonial statements. 213 Ariz. 632, ¶ 20,
146 P.3d at 1279. The court in Shreck noted:
Crawford applies to out-of-court statements by witnesses who would have testified at trial to past events or facts, but are attempting to testify ex parte through an affidavit in lieu of live testimony. In contrast, the affidavits at issue here were provided solely to verify the chain of custody and authenticity of the underlying documentary evidence. It is the underlying documentary evidence, and not the authenticating affidavits, that reference (and are thus used to prove) the facts material to habitual criminal proceedings, namely, a defendant’s prior convictions.
107 P.3d at 1060-61 (citation omitted).
¶7 Similarly, the affidavit at issue here, which contained the preparer’s attestation
that the attached documents were “true and correct copies of original and/or original
certified documents now contained in the master record file” of the DOC merely “verif[ies]
5 the chain of custody and authenticity of the underlying documentary evidence.” Id. at 1061.
The attached documents, not the affidavit, are what prove Bennett’s prior convictions. In
Bohsancurt v. Eisenberg, 212 Ariz. 182, ¶¶ 32-34, 129 P.3d 471, 480 (App. 2006), we
rejected a similar argument about whether the affidavits attached to maintenance and
calibration records for a breath-testing machine rendered the records testimonial. We found
they did not, noting the affidavits with which Crawford seemed to be concerned were those
that “resemble[d] a sworn memorialization of statements elicited ex parte to inculpate a
defendant.” 212 Ariz. 182, ¶ 33, 129 P.3d at 480. Like the affidavits in Bohsancurt, the
affidavit here was not “created to formalize statements made at the behest of a party to
document specific facts of a case. Rather, [it was] signed and completed in the ordinary
course of business, solely in connection with the [underlying documents] themselves.”6 Id.
¶ 34. Under these circumstances the affidavit accompanying the documents showing
Bennett’s prior convictions is not testimonial under Crawford.
¶8 And, the fact that the documents proving Bennett’s prior convictions were
attached to an affidavit attesting to their authenticity does not render the documents
themselves testimonial. Because the records and affidavit were not testimonial, Bennett’s
rights under the Confrontation Clause were not violated by their admission without the
6 We acknowledge that the affidavit at issue here, unlike the ones in Bohsancurt v. Eisenberg, 212 Ariz. 182, ¶ 34, 129 P.3d 471, 480 (App. 2006), does “have a relationship to [a] specific case or defendant.” However, as we noted in State v. King, 213 Ariz. 632, ¶ 23, 146 P.3d 1274, 1280 (App. 2006), “not every record pertaining to a specific individual is necessarily testimonial.”
6 testimony of the persons who had prepared the records and signed the affidavit. Bennett’s
convictions and sentences are therefore affirmed.
____________________________________ GARYE L. VÁSQUEZ, Judge
CONCURRING:
____________________________________ JOHN PELANDER, Chief Judge
____________________________________ JOSEPH W. HOWARD, Presiding Judge