Court of Appeals of Arizona, First Division, Department A
Appeal from the Superior Court in Maricopa County Cause No. CR2011-138908-002 The Honorable Connie Contes, Judge.
Thomas C. Horne, Arizona Attorney General Phoenix Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Division And Linley Wilson, Assistant Attorney General Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Phoenix Charles R. Krull, Deputy Public Defender Attorneys for Appellant.
PATRICIA A. OROZCO, Presiding Judge
¶1 Martell Darren Franklin (Defendant) appeals his convictions and sentences for disorderly conduct, a class six felony; assault, a class one misdemeanor; and unlawful imprisonment, a class six felony. Defendant alleges that the trial court erred when it admitted hearsay interview statements under the forfeiture by wrongdoing exception of Arizona Rule of Evidence 804(b)(6) . He also alleges that admitting those statements violated his right to confront his accuser under the Sixth Amendment to the United States Constitution. We find that the trial court did not err and therefore affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In July 2011, Defendant was arrested after Glendale Police Department officers responded to a fight. After S.L. (Victim) arrived at the hospital, Officer A. contacted her. Victim was visibly upset and had sustained noticeable injuries, but she responded to Officer A.'s questions. Officer A. electronically recorded the ten to fifteen minute interview. During the interview, Victim described her version of the events and identified Defendant as the individual responsible for her injuries.
¶3 The State charged Defendant with one count of aggravated assault, one count of assault, and one count of unlawful imprisonment. As part of his conditions of release, Defendant was "not to initiate contact of any nature" with Victim. The record indicates that Defendant did not post bond, and he remained in custody until his trial date.
¶4 Beginning in late October 2011, Victim became uncooperative with the State's investigation. She would not answer or return any of the phone calls placed by her victim advocate. The State requested jail call records for Defendant and discovered that between October 25, 2011 and November 30, 2011, Defendant attempted to contact Victim by telephone 109 times and spoke to her fifty-eight times. After Victim was subpoenaed to attend Defendant's trial, she called her advocate asking what would happen if she did not testify or refused to attend the trial.
¶5 After learning that Defendant had been contacting Victim, the State moved for a forfeiture by wrongdoing hearing. Although Victim was subpoenaed to attend Defendant's trial on December 11, 2011, she did not appear. The trial was reset for the following day, and a warrant was issued for her arrest. The next day, Victim again failed to appear.
¶6 On December 13, 2011, a pretrial evidentiary hearing was held addressing the State's forfeiture by wrongdoing motion. During the hearing, the State argued Victim's hearsay interview statements that she made to Officer A. should be admitted because Defendant, during the jail calls, had engaged in wrongdoing that was intended to, and did, procure the unavailability of Victim at trial. After taking the matter under advisement, the trial court found by a preponderance of the evidence that Defendant engaged in "chicanery, " reflective of the "abhorrent behavior which strikes at the heart of the system of justice itself." As a result, Victim's interview statements were admitted at trial.
¶7 A jury convicted Defendant of one count of disorderly conduct,  one count of assault, and one count of unlawful imprisonment. The trial court sentenced Defendant to time served for the assault conviction. In addition, it sentenced Defendant to 3.75 years' imprisonment for the other two counts, to be served concurrently.
¶8 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 ...