State v. Hernandez

959 P.2d 810, 191 Ariz. 553, 270 Ariz. Adv. Rep. 34, 1998 Ariz. App. LEXIS 88
CourtCourt of Appeals of Arizona
DecidedMay 26, 1998
Docket1 CA-CR 97-0484
StatusPublished
Cited by13 cases

This text of 959 P.2d 810 (State v. Hernandez) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hernandez, 959 P.2d 810, 191 Ariz. 553, 270 Ariz. Adv. Rep. 34, 1998 Ariz. App. LEXIS 88 (Ark. Ct. App. 1998).

Opinions

OPINION

GERBER, Judge.

¶ 1 Armando Michael Hernandez (“Defendant”) appeals from his conviction and sentence on one count of murder in the second degree under Arizona Revised Statutes Annotated (“A.R.S.”) section 13-1104. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Defendant and the victim, Perry Cota, had an ongoing, sometimes violent dispute. When the two confronted each other on the night of January 22, 1994, Defendant fatally shot Cota with a handgun. Several people witnessed the event. Defendant left the scene and called 9-1-1 approximately 20 minutes after the shooting to report the incident. Defendant told the 9-1-1 operator that Cota attacked him with two broken bottles and that he shot Cota in self defense. Police arrested Defendant later that evening.

¶ 3 A Maricopa County grand jury indicted Defendant on one charge of first degree murder. The case proceeded to a jury trial where Defendant sought acquittal on a self-defense theory. The State’s witnesses testified to a version of events that did not support self defense. The jury convicted Defendant of second degree murder. The trial court sentenced him to a presumptive 16-year prison term.

¶ 4 Defendant timely appealed. This court has jurisdiction to adjudicate the appeal. Ariz. Const, art. VI, § 9; A.R.S. §§ 12-120.21(A)(1) (1992), 13-4031 (1989), 13 — 1033(A)(1) (Supp.1997).

ANALYSIS

1. The trial court was within its discretion in admitting Defendant’s prior felony convictions to impeach his statements on the 9-1-1 tape.

¶ 5 Anticipating that Defendant might testify at trial, the State moved under [556]*556Rule 609 of the Arizona Rules of Evidence (“Rules”) to admit Defendant’s prior felony convictions for purposes of impeaching his testimony. After a hearing, the court ruled the prior convictions admissible for impeachment if they were “sanitized” as to the nature of the felonies and subject to an appropriate limiting instruction.

¶ 6 Defendant moved in limine to admit a tape recording of the 9-1-1 call he made from his parents’ home approximately 20 minutes after the murder (the “9-1-1 tape”), arguing alternatively that it was not hearsay,1 and that it fell within the excited utterance exception to the hearsay rule.2 The State noticed its intention to use the prior convictions for impeachment of Defendant’s statements on the tape regardless whether he testified, relying on Rule 806.3 Defendant objected to use of the prior convictions to impeach his 9-1-1 tape statements, and the parties briefed and argued the issue. Defendant contended that the prior convictions should not be used. First he argued that Rule 806 applied only to hearsay statements, and the 9-1-1 tape was not hearsay because it was being introduced to rebut premeditation by showing that he reported the incident to authorities, an act presumably inconsistent with premeditation. Secondly, he argued that the prior convictions were “not probative at all” because he was not convicted until after the date of the shooting.4

¶ 7 Defendant did not testify, but he did introduce the 9-1-1 tape. Over defense objection, and after briefing5 and argument on the applicability of Rule 806, the trial court permitted the State to impeach Defendant’s statements on the 9-1-1 tape with his prior convictions. He argues that prior convictions may only be used to impeach testifying witnesses, that it is illogical to impeach excited utterances with prior convictions, and that the use of prior convictions against a criminal defendant is distinct from and more unfairly prejudicial than use of prior convictions to impeach other categories of witnesses. We disagree with each of these contentions.

¶ 8 We note at the outset that Rule 806 applies because, as Defendant implicitly concedes on appeal, his statements on the 9-1-1 tape were hearsay, i.e. statements offered to prove the truth of the matter asserted. Ariz. R. Evid. 801(c). We have only to refer to Defendant’s opening statement and closing argument to establish this point beyond doubt:

(referring to anticipated testimony from a defense expert) [H]e will tell you that in his opinion, the very same thing that you will be able to hear from Mr. Hernandez, not now, but then, on that 911 tape moments after this happened is what happened.
$ ‡ ‡ $
(referring to the 9-1-1 tape) And you heard him. You heard him talking to the police, turniñg himself in.
[557]*557This guy came at me with two beer bottles. I didn’t know what to do. I didn’t want to. I didn’t know what to do.

Defense counsel also argued that his expert’s conclusions matched the version of events Defendant related to the 9-1-1 operator.

a. Impeachment of Excited Utterances

¶ 9 Rule 806 clearly contemplates use of impeachment evidence to discredit hearsay statements by non-testifying declarants:

When a hearsay statement ... has been admitted in evidence, the credibility of the declarant may be attacked ... by any evidence which would be admissible for [that] purpose[ ] if declarant had testified as a witness.

[Emphasis added.] Rule 806 “specifically permits impeachment of a hearsay statement made by an absent declarant by any means which would have been permissible had the declarant been present and testified.” State v. Valencia, 186 Ariz. 493, 501, 924 P.2d 497, 505 (App.1996).

¶ 10 Defendant argues that the impeachment evidence is irrelevant because it “can only be used to weigh the credibility of a witness whose demeanor and words the jury has viewed.” This notion, too, conflicts with the very existence of Rule 806, which we interpret to specifically permit impeachment of hearsay statements by absent declarants. See Valencia, 186 Ariz. at 501, 924 P.2d at 505. Even before the Arizona Supreme Court promulgated the current Rules in 1977, our courts permitted the use of prior felony convictions to impeach a non-testifying declarant’s hearsay statements. State v. Owen, 101 Ariz. 156, 158, 416 P.2d 589, 591 (1966).

¶ 11 We see nothing illogical in concluding that excited utterances may be impeached. Although excited utterances are admissible because they are inherently trustworthy, that badge of trustworthiness does not render them unimpeachable. The jury determines the credibility of all testimonial statements offered to prove the truth of their content, including excited utterances. See State v. Bowie, 119 Ariz. 336, 342, 580 P.2d 1190, 1196 (1978). Advising the jurors of the declarant’s prior felony convictions aids them in assessing the trustworthiness of the declarant’s statement.6

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Bluebook (online)
959 P.2d 810, 191 Ariz. 553, 270 Ariz. Adv. Rep. 34, 1998 Ariz. App. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hernandez-arizctapp-1998.