Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Coconino County No. S0300CR201100479 The Honorable Joseph J. Lodge, Judge (Retired)
Arizona Attorney General’s Office, Phoenix By Myles A. Braccio Counsel for Appellee
White Law Offices, Flagstaff By Wendy F. White Counsel for Appellant
Judge Margaret H. Downie delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.
¶1 Ronny Brent Yellowhorse appeals his convictions and sentences for possession of dangerous drugs for sale, misconduct involving weapons, criminal littering, and three counts of possession of drug paraphernalia. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A).
FACTS AND PROCEDURAL HISTORY
¶2 The criminal charges at issue arose from an investigation into suspected drug sales at two Flagstaff motel rooms occupied by Yellowhorse. Police officers ultimately arrested Yellowhorse on criminal littering charges, and in searching his pockets, found a half-ounce of methamphetamine, a scale containing methamphetamine residue, and a drug sales ledger. During a search of the second motel room rented by Yellowhorse, officers found baggies containing methamphetamine residue, a methamphetamine pipe, and a shotgun. In recorded jail telephone calls following his arrest, Yellowhorse acknowledged that he sold drugs to support himself and his family and stated that he knew the shotgun would get him in trouble.
I. Admission of Hearsay
¶3 Yellowhorse argues that the trial court abused its discretion and violated his rights under the Confrontation Clause of the Sixth Amendment by admitting an out-of-court statement made by an unavailable witness to the effect that he had purchased methamphetamine from Yellowhorse. Officers stopped that individual after he left Yellowhorse's second motel room and discovered methamphetamine in his possession. When an officer inquired where he had obtained the drug, the man responded that he had purchased it at the motel "from a male named Ronny for $20, " though he later changed the location of the sale and the name of the seller to "Rodney."
¶4 The trial court found that the declarant was an unavailable witness based on the State's avowal that, if called, he would assert his Fifth Amendment right against self-incrimination. The court further found that the statement was "not hearsay, " apparently because it believed the statement was one against interest under Rule 804(b)(3), Arizona Rules of Evidence ("Rule").
¶5 The State concedes, and we agree, that the statement was testimonial hearsay; thus, its admission violated Yellowhorse's rights under the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 68 (2004). We assume for the sake of argument that the court also erred in admitting this statement over defendant's hearsay objection. However, neither the ...