FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA FEB 17 2012
DIVISION TWO COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2011-0028
) DEPARTMENT A
Appellee, )
) OPINION
v. )
)
RICHARD LEE PALMER, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20100696001
Honorable John S. Leonardo, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, David A. Sullivan, Tucson
and Nicholas Klingerman Attorneys for Appellee
Robert J. Hirsh, Pima County Public Defender
By Rebecca A. McLean Tucson
Attorneys for Appellant
B R A M M E R, Judge.
¶1 After a jury trial, appellant Richard Palmer was convicted of possessing
nine grams or more of methamphetamine for sale. Palmer admitted having one historical
prior felony conviction, and the trial court sentenced him as a category two repetitive
offender to a mitigated prison term of 4.5 years. On appeal, Palmer maintains (1) the
court erred in allowing inadmissible hearsay evidence over his objection, (2) the
admission of hearsay was not harmless, and (3) there was insufficient evidence to support
his conviction. For the following reasons, we affirm.
Background
¶2 We view the facts, and reasonable inferences from the facts, in the light
most favorable to sustaining the jury‟s verdict. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2,
186 P.3d 33, 34 (App. 2008). On February 6, 2010, Palmer was taken to the hospital
after crashing his motorcycle in a single-vehicle accident. While inventorying Palmer‟s
possessions, B.C., a hospital employee, found a baggie containing white rocks that
resembled “rock candy” and gave it to a police officer. The baggie contained 12.57
grams of methamphetamine.
Discussion
Admission of Hearsay
¶3 We review a trial court‟s ruling on the admissibility of evidence for an
abuse of discretion. Id. ¶ 7. In opening statements, the prosecutor told the jury the
evidence would show B.C. had “inventorie[d] the things . . . brought in” with Palmer,
including his “clothing, shoes, wallet, those types of things”; she had found the baggie
containing methamphetamine in Palmer‟s right front pants‟ pocket; and she had given the
baggie to a police officer. In contrast, Palmer told the jury the evidence would establish
B.C. had found the baggie in a backpack near the door of Palmer‟s trauma bay and gave
it to hospital security personnel, and two women later “c[a]me up and [went] through the
2
backpack and t[ook] the backpack away.” According to Palmer‟s opening statement, the
methamphetamine
didn‟t come from anybody‟s pants. It didn‟t come from
[Palmer,] and [B.C.] never had a conversation with [him]
about the backpack, about who owned it or about this baggie.
All she knows is that two women came in and took the
backpack away and it‟s gone. There‟s nothing . . . [to] show
Mr. Palmer was in possession of any drugs, dangerous or
otherwise.
¶4 At trial, B.C. testified she had discovered the baggie containing
methamphetamine in a backpack that had been transferred from the ambulance that
brought Palmer to the hospital to Palmer‟s emergency room trauma bay. During cross-
examination, defense counsel elicited B.C.‟s testimony that the backpack had not been
inventoried along with Palmer‟s other belongings but had been removed by two women
who had come to Palmer‟s trauma bay after B.C. had found the baggie of
methamphetamine and had given it to the officer.
¶5 During redirect examination, the state asked B.C. about the two women
who had removed the backpack from the trauma bay and referred her to the transcript of
her earlier interview with the state and defense counsel. Palmer‟s counsel objected,
explaining to the trial court that he was “anticipating . . . hearsay,” because the portion of
the interview transcript identified had included B.C.‟s report of what the women had said.
Despite no ruling from the court, the state acknowledged counsel‟s concern and the
following ensued:
Q. . . . . And going back again, you had told this jury that
two women had come in to take the backpack. Did they ask,
3
without telling me what they said, did they ask Mr. Palmer
about taking the backpack?
A. I can recall they asked, where is your backpack.
Following B.C.‟s answer, Palmer renewed his objection, saying “Judge, I would object,”
and the court, stating “it‟s not offered for the truth of the matter stated,” overruled the
objection. B.C. then repeated, “I recall them asking where his backpack was.”
¶6 On appeal, Palmer argues the trial court erred in allowing B.C.‟s testimony
about what the women said before they took the backpack, contending that, although
phrased as a question, their words “contain[ed] an assertion . . . that the backpack
belong[ed] to Mr. Palmer,” and were “analytically no different than had the women said,
„We are taking your backpack.‟” The state responds that Palmer “opened the door” to
B.C.‟s testimony by asking about the women who removed the backpack from the trauma
bay and, therefore, cannot assign error to the admission of their statements;1 that the
evidence was not hearsay because it was offered to explain the backpack‟s removal rather
than to establish Palmer‟s ownership of it; and that, if error occurred, reversal is not
required because other independent evidence linked Palmer to the backpack.
¶7 The statement the women made was not intended as an assertion and thus
was not inadmissible hearsay. Hearsay is “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). A “statement” is further defined as either “an
1
Because we determine the evidence was not hearsay, we need not address this
argument.
4
oral or written assertion” or “nonverbal conduct of a person, if it is intended by the
person as an assertion.” Ariz. R. Evid. 801(a).2 “[W]ords or conduct not intended as
assertions are not hearsay even when offered as evidence of the declarant‟s implicit belief
of a fact.” State v. Chavez, 225 Ariz. 442, ¶¶ 8, 9, 239 P.3d 761, 763 (App. 2010) (text
messages from “prospective buyers [who] wanted to purchase drugs” from defendant
admissible “as circumstantial evidence that [defendant] had drugs for sale.”).
¶8 Like the court in Chavez, we find reference to federal authority instructive.
See id. ¶¶ 7-9. Commenting on Rule 801(a), Fed. R. Evid., the advisory committee
explained its intent to “exclude from the operation of the hearsay rule all evidence of
conduct, verbal or nonverbal, not intended as an assertion” based on the perceived
reliability of unintended communications. Fed. R. Evid. 801(a) advisory committee note.
The committee emphasized the “key to the definition [of „statement‟] is that nothing is an
assertion unless intended to be one.” Id. And evidence “the person acted as he did
because of his belief in the existence of the condition sought to be proved, from which
belief the existence of the condition be inferred,” is not hearsay. Id. The burden is on the
party claiming an assertion was intended and “ambiguous and doubtful cases will be
resolved . . . in favor of admissibility.” Id.
¶9 In State v. Carrillo, 156 Ariz. 120, 124, 750 P.2d 878, 882 (App. 1987),
vacated in part on other grounds, 156 Ariz. 125, 128, 750 P.2d 883, 886 (1988) (granting
2
The version of Rule 801(a) effective January 1, 2012 defines “statement” as “a
person‟s oral assertion, written assertion, or nonverbal conduct, if the person intended it
as an assertion.” Ariz. R. Evid. 801(a). This stylistic change clarifies that all assertions
must be intended as such to constitute a “statement.”
5
review only on issues of voluntary confession and improper comment on invocation of
rights), the defendant argued statements the deceased victim had made should have been
excluded as hearsay. In that case, the victim had spoken on the phone to a friend around
the time of death and the friend had heard him say to someone in the background,
“Hector, don‟t do that now,” or “Hector, we will do that later.” Id. at 121, 750 P.2d at
879. The remark “[wa]s probative because it show[ed] that a person named Hector was
in [the victim]‟s home at that time, but [the victim] was not intending to assert anything
by making the statement.” Id. at 124, 750 P.2d at 882. Therefore, the statement was “not
hearsay at all” and was properly admitted. Id.
¶10 Here, as B.C. testified, two women appeared at Palmer‟s trauma bay, and
asked where his backpack was. At that time no backpack as yet had been identified.
They then left with the backpack. This testimony suggested the women “acted as [they]
did because of [their] belief in the existence of the condition sought to be proved,”—
Palmer‟s ownership of the backpack—and their belief gave rise to an inference the
backpack belonged to Palmer. Fed. R. Evid. 801(a) advisory committee note; see also
Chavez, 225 Ariz. 442, ¶ 7, 239 P.3d at 763. However, the question was not “intended by
[the women] as an assertion,” Ariz. R. Evid. 801(a), and, under the analysis the federal
advisory committee proposed, was not subject to exclusion as hearsay. See Fed. R. Evid.
801(a) advisory committee note; Chavez, 225 Ariz. 442, ¶¶ 8, 9, 239 P.3d at 763; see also
State v. Ellison, 213 Ariz. 116, ¶¶ 54, 56, 140 P.3d 899, 915 (2006) (testimony about
person‟s “[n]onverbal conduct is hearsay if it is intended to be an assertion”; officer‟s
testimony that witness‟s “actions and body language were visibly very different” at
6
mention of defendant not intended as assertion and not hearsay); State v. Printz, 125 Ariz.
300, 303, 609 P.2d 570, 573 (1980) (hearsay limited to words or conduct “intended by
the actor as an assertion”; police officer‟s purchase of television for $299.85 not intended
as assertion of value). Similar to Carrillo, 156 Ariz. at 124, 750 P.2d at 882, the women
were not “intending to assert anything by making the statement,” but were merely
attempting to find the backpack, and thus their statement was “not hearsay at all.”
Therefore, the trial court did not err in allowing the testimony over Palmer‟s objection.3
Insufficient Evidence
¶11 Palmer also argues evidence that the backpack containing the
methamphetamine belonged to him was nothing more than “conjecture or suspicion” and
was insufficient to support the jury‟s verdict. “When considering claims of insufficient
evidence, „we view the evidence in the light most favorable to sustaining the verdict and
reverse only if no substantial evidence supports the conviction.‟” State v. Fimbres, 222
Ariz. 293, ¶ 4, 213 P.3d 1020, 1024 (App. 2009), quoting State v. Pena, 209 Ariz. 503,
¶ 7, 104 P.3d 873, 875 (App. 2005). Substantial evidence is that which “„reasonable
persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.‟”
State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 913-14 (2005), quoting State v. Hughes,
189 Ariz. 62, 73, 938 P.2d 457, 468 (1997). “Evidence may be direct or circumstantial,
but if reasonable minds can differ on inferences to be drawn therefrom, the case must be
3
Because we find no error, we need not address Palmer‟s argument that any error
was not harmless.
7
submitted to the jury.” State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993)
(citation omitted).
¶12 Here, B.C.‟s testimony that she saw the backpack brought into Palmer‟s
trauma bay as a normal part of the transfer of a patient‟s property from the ambulance
that transported him to the hospital is circumstantial evidence from which a jury could
infer the backpack belonged to him. Similarly, although Palmer is correct there is no
evidence he responded to the statement from the women who came to his trauma bay and
removed the backpack, the fact they appeared there and addressed him directly about
“his” backpack, and then left with the only backpack present, leads to the reasonable
inference that the backpack was his. A reasonable jury could have found this evidence of
possession sufficient beyond a reasonable doubt, and substantial evidence thus supports
his conviction. See Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d at 913-14.
Disposition
¶13 For the foregoing reasons, we affirm Palmer‟s conviction and sentence.
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
8
E C K E R S T R O M, Presiding Judge, dissenting.
¶14 The verdict in this case turned on whether the jury could conclude beyond a
reasonable doubt that a certain backpack containing methamphetamine, located in an
emergency room bay, belonged to the defendant. To secure that verdict, the state elicited
the express assertion of a nameless female declarant that the backpack was Palmer‟s.4
Because the state did not call the declarant as a witness, because the sincerity and
accuracy of her assertion could therefore not be tested by oath and cross-examination,
and because the assertion was offered directly for the proposition that the backpack
belonged to Palmer, it was hearsay as defined in Rule 801(a) and (c), Ariz. R. Evid.
¶15 Our rules define “hearsay” 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). “A „statement‟ is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended by the person as an
assertion.” Ariz. R. Evid. 801(a). Here, the declarant asked Palmer, “[W]here is your
backpack[?]” immediately before retrieving the backpack that had contained the
methamphetamine and departing with it. In the context of the encounter, the words of
that utterance communicated two discrete thoughts: (1) that the declarant was trying to
locate a backpack and (2) that it belonged to Palmer. Thus, the declarant, by choosing
the words “your backpack” to describe the object of her search to Palmer, directly
4
According to B.C., the statement was uttered by “women” who visited the
emergency room—but because we are dealing with only one statement, we can infer that
only one of the two women spoke.
9
asserted her belief that the backpack—the one she was searching for—belonged to him.
For this reason, that component of her query was an assertion and, therefore, a
“statement” as defined by Rule 801(a).
¶16 On the record before us, there can be little dispute that the state offered that
assertion to prove the truth of the declarant‟s belief—that the backpack for which she was
searching, and that she departed with, belonged to Palmer. Indeed, the state has not
offered any other plausible purpose for which it would need to elicit that portion of the
declarant‟s utterance.5 Therefore, the component of the declarant‟s utterance that directly
expressed her belief that the backpack was Palmer‟s was inadmissible hearsay as defined
by the rule.
¶17 Citing Chavez, 225 Ariz. 442, ¶¶ 8, 9, 239 P.3d at 763, and the advisory
committee note to Rule 801(a), Fed. R. Evid., the majority concludes the utterance here
was nonhearsay because it was “not intended as an assertion.” Supra ¶ 7. In my view,
that analysis overlooks a crucial distinction between the nonhearsay statements addressed
in Chavez and those here, and misunderstands the text of the advisory committee note,
which sets forth precisely that distinction. In so doing, the majority also mischaracterizes
5
The state has argued that admitting the statement was necessary to explain the
circumstances under which the women took the backpack. But no rule of evidence
prevented the state from eliciting that the women addressed Palmer before departing with
the backpack. Indeed, the prosecutor initially attempted to elicit the declarant‟s conduct
in addressing Palmer without eliciting the content of her words. Thus, the state has not
explained how the specific words “your backpack” could be logically offered for any
other purpose than to prove the backpack belonged to Palmer.
10
the pertinent utterance here as an implicit rather than an express assertion of the
declarant‟s belief.
¶18 In Chavez, Division One of our court held that a series of text messages left
on the defendant‟s phone, apparently inquiring about the purchase of methamphetamine,
were nonhearsay because they were not offered for the truth of the matters directly
asserted therein—that the declarants wanted to purchase drugs. 225 Ariz. 442, ¶¶ 2, 6-9,
239 P.3d at 762-63. Rather, they were offered for the “implicit belief[s]” conveyed by
those messages—that the defendant “had drugs for sale.” 225 Ariz. 442, ¶¶ 8, 9, 239
P.3d at 763. In so concluding, the court adopted the definition of “statement” from the
advisory note to the federal rule that excludes from the application of the hearsay rule
“„all evidence of conduct, verbal or nonverbal, not intended as an assertion.‟” Id. ¶ 7,
quoting Fed. R. Evid. 801(a) advisory committee note. Applying that approach to the
comments before it, the court reasoned that the declarants‟ inquiries to purchase drugs
were merely a species of verbal conduct because they were only implicit expressions of
the declarants‟ belief that Chavez possessed drugs for sale rather than direct ones. Id.
¶¶ 7-9. Put another way, nothing about the words contained in the utterances, “Can you
deliver a 50-shot?” or “I just need a half” asserted that Chavez possessed
methamphetamine for sale. Id. ¶ 6. Rather, the declarants‟ belief that Chavez sold drugs
had to be inferred or deduced from the words uttered, thereby demonstrating that the
declarants did not specifically intend to convey that belief with their words.
¶19 By contrast, the words chosen by the declarant here, “your backpack,”
themselves conveyed the declarant‟s belief that the backpack she sought belonged to
11
Palmer. This is a crucial distinction. As the advisory note emphasizes: “It can scarcely
be doubted that an assertion made in words is intended by the declarant to be an
assertion.” Fed. R. Evid. 801(a) advisory committee note. Thus, contrary to the
suggestion of the majority, “your backpack” would be considered an “assertion” even
under the federal advisory note approach adopted in Chavez. Here, in conformity with
that approach, we are assured the declarant quite consciously intended to assert her belief
that the backpack belonged to Palmer because she makes that assertion directly in the
words she chose.
¶20 That the utterance here qualifies as hearsay finds further support in both the
logic of the federal advisory note approach and the broader purpose of the hearsay rule.
Commentators have explained the rationale for the advisory note approach as follows:
A principal reason for excluding hearsay is that the veracity
of the declarant cannot be tested by cross-examination. In the
case of non-assertive acts, the actor by definition does not
intend to make an assertion, meaning that the risk of
insincerity is substantially diminished. The actor is at least
not trying to lie.
4 Stephen A. Saltzburg et al., The Federal Rules of Evidence Manual § 801.02[1][c], at
801-14 (8th ed. 2002). But when, as here, the declarant had chosen words that directly
convey the assertion that the backpack belonged to Palmer, the risk of insincerity is not
diminished in the least. Indeed, the declarant‟s arrival at the emergency room with the
exclusive focus on locating and departing with the backpack strongly suggests the
declarant was aware that the backpack contained methamphetamine. Given that the
declarant inquired about the backpack in the presence of hospital staff, her motivation to
12
verbally distance herself from ownership of the backpack is apparent. Thus, the
importance of cross-examination to test the sincerity of the assertion here is heightened
rather than diminished.
¶21 Nor can the characterization of the assertion as nonhearsay be harmonized
with the core purpose of the hearsay rule. That purpose is to preserve an “„Anglo-
American system of law‟” premised on the assumption that litigants will meet their
burdens of proof and prevail on factual disputes by presenting evidence through
witnesses under oath, subject to cross-examination and assessment of demeanor.
Douglass v. State, 44 Ariz. 84, 93-94, 33 P.2d 985, 988 (1934), quoting 5 John Henry
Wigmore, Evidence in Trials at Common Law § 1367, at 32 (Chadbourn rev. ed. 1974).
As Justice Lockwood long ago observed in quoting Wigmore‟s treatise on evidence:
“For two centuries past, the policy of the Anglo-American
system of Evidence has been to regard the necessity of testing
by cross-examination as a vital feature of the law. The belief
that no safeguard for testing the value of human statements is
comparable to that furnished by cross-examination, and the
conviction that no statement (unless by special exception)
should be used as testimony until it has been probed and
sublimated by that test, has found increasing strength in
lengthening experience.”
Id. at 93, 33 P.3d at 988, quoting Wigmore, supra ¶ 21, at 32. In generally addressing the
purpose of Rule 801, Ariz. R. Evid., Arizona‟s own oft-cited evidence treatise concludes:
The minimization of the dangers of misperception,
misremembering, insincerity and ambiguity by cross-
examination is the essential basis of the hearsay rule. The
general requirement that a witness offer his information from
the witness stand before the trier, however, serves two other
purposes, as well. It requires the taking of an oath impressing
the witness with the solemnity and importance of the
13
occasion. The risks of conscious or unconscious exaggeration
are thereby reduced. In addition, the trier is able to observe
the demeanor of the witness as an aid to assessing his
credibility.
1 Joseph M. Livermore et al., Arizona Practice: Law of Evidence § 801.1, at 303 (4th ed.
2000).
¶22 In this case, arguably the most important piece of evidence marshaled by
the state to demonstrate Palmer‟s ownership of the backpack was the assertion of an
unnamed woman, under suspicious circumstances, that he owned it.6 As a result of the
trial court‟s ruling, the sincerity, accuracy, and basis for that pivotal assertion was not
tested by cross-examination. Nor could the jury assess the demeanor of the declarant
under oath. That the majority‟s analysis has exempted such a pivotal assertion, given
under such suspicious circumstances, from the rule that entitles a litigant to meaningfully
challenge its truth and accuracy—an exemption so at odds with the purpose and rationale
of the hearsay rule and the traditions of our justice system—suggests an oversight in that
analysis.
6
The state‟s only other evidence suggesting the backpack belonged to Palmer was
B.C.‟s testimony that the paramedics, as a matter of regular procedure, transport the
personal items of patients from the accident scene and deliver those items to the
emergency bays where the patients are treated. The state, however, declined to call the
specific paramedics involved in this case to address where they found the backpack at the
accident scene involving Palmer‟s motorcycle, why they believed it belonged to Palmer,
or whether the seriously injured Palmer had indicated to them that it belonged to him. I
would conclude such circumstantial evidence was sufficient to survive a motion for
judgment of acquittal. However, given the chaotic nature of both accident scenes and
hospital emergency rooms, I am skeptical a jury would necessarily have found Palmer
guilty beyond a reasonable doubt on such evidence alone.
14
¶23 The majority reasons that “the women „acted as [they] did because of
[their] belief in the existence of the condition sought to be proved,‟—Palmer‟s ownership
of the backpack—and their belief gave rise to an inference the backpack belonged to
Palmer.” Supra ¶ 10, quoting Fed. R. Evid. 801(a) advisory committee note. From these
premises, the majority posits that the utterance embedded in that sequence of events was
not intended as an assertion. But, the majority‟s reference to the segment of the advisory
note addressing actions implying “belief in the existence of the condition sought to be
proved,” Fed. R. Evid. 801(a) advisory committee note, a segment devoted to addressing
whether certain nonverbal conduct constitutes hearsay, provides little guidance in
determining whether the verbal utterance we analyze here can be characterized as an
assertion. Rather, our starting point in evaluating whether a certain verbal
communication constitutes hearsay, even under the federal advisory analysis, must be
whether the utterance constitutes “an assertion made in words.” Id.
¶24 My colleagues also observe that at the time the declarant spoke, “no
backpack as yet had been identified,” and therefore the utterance could not have been a
“statement about the backpack that contained the drugs.” Supra ¶ 10. The reasoning
suggests that the specific meaning of the utterance itself was contingent on the
declarant‟s subsequent actions, and therefore the meaning of the utterance must be
inferred from context. Indeed, in the absence of any context, the phrase “your backpack”
asserts very little meaning. In the absence of any factual context, we cannot know who
the declarant is addressing and therefore who she claims owns the backpack. Nor, in the
absence of context, do we know which backpack she seeks to locate. But these
15
observations give us little guidance in assessing whether the utterance in question is
assertive and therefore hearsay under the federal advisory approach. All communication,
both hearsay and nonhearsay, gains its meaning from its factual context and almost all
spoken exchange depends on context to be understood. See David Crystal, The
Cambridge Encyclopedia of Language 106 (3d ed. 2010) (hereinafter Cambridge
Encyclopedia) (meaning of verbal communication determined by “analyses of the way
words and sentences are used in specific contexts”); see also David Crystal, A Dictionary
of Linguistics and Phonetics 87 (4th ed. 1997) (“Words, it is suggested, have meaning
only when seen in context.”). Were we to conclude that an utterance ceases to be an
assertion merely because the utterance is dependent on context for its meaning, there
would be few, if any, utterances that would qualify as assertions under the rule.7
¶25 For example, in the context of a homicide case, we would not characterize
the statement of an out-of-court declarant, “You killed my brother,” as nonhearsay simply
because the declarant may have had more than one brother or because the words
themselves do not clarify who the declarant is accusing. Rather, we presumably know
from the context of the case that the declarant is referring to the brother whose death is
the topic of the case and claiming the person whom she is addressing caused the death.
Here, similarly, the context of the instant case readily clarifies which backpack the
declarant sought and to whom she claimed it belonged. In neither case does our recourse
7
Many commonly used words in every language are inherently dependent of
context for meaning, including pronouns such as “your.” See Cambridge Encyclopedia,
supra ¶ 24, at 110 (discussing deictic words that “can be interpreted only with reference
to the speaker‟s position in space or time” and describing categories of such words as
personal, spatial, and temporal).
16
to the context of the utterances demonstrate that the respective declarants did not
specifically intend to assert precisely the meaning conveyed by their words. See Fed. R.
Evid. 801(a) advisory committee note (“The key to the definition [of a statement] is that
nothing is an assertion unless intended to be one.”).
¶26 Put in terms of Rule 801 analysis, the truth of the matter asserted here was
that the backpack the declarant was trying to locate belonged to Palmer. Merely because
we must evaluate the relevance of that assertion from other factual developments of the
case does not transform the utterance itself into an unintended implied assertion. As
discussed above, the declarant fully intended to convey that the backpack for which she
was searching belonged to Palmer. That she then immediately saw, and departed with,
the backpack that contained methamphetamine is what makes the statement especially
probative in the context of the case. Few out-of-court statements convey in a phrase the
entire proponent‟s theory of the case (here, that the methamphetamine belonged to
Palmer), and such is not required by Rule 801 to characterize a statement as hearsay. In
short, that an out-of-court statement gains its probative import from the context of the
case is neither surprising nor pertinent to the question of whether the statement is
hearsay.
¶27 Nor does the pertinent utterance here become nonhearsay merely because it
was embedded in the question, “[W]here is your backpack[?]” As the highest court of
Maryland has pointed out, “The grammatical form of an utterance does not control
whether the words are hearsay.” Stoddard v. State, 887 A.2d 564, 581-82 (Md. 2005)
(characterizing question, “Is Erik going to get me?” as hearsay); see also United States v.
17
Summers, 414 F.3d 1287, 1300 (10th Cir. 2005) (characterizing question, “How did you
guys find us so fast?” as hearsay; rejecting suggestion that question may never contain
hearsay, reasoning that pertinent issue is whether assertion implied within question was
intended by declarant).8 And, one can readily conjure statements, phrased in the form of
a question, that contain positive declarations of potential importance in a given criminal
case. For example, the inquiries: “Why did you kill my brother?” “How did you get that
blood on your shirt?” and “Where is your backpack that I saw you put the
methamphetamine into?” all include assertions, fully intended by the declarant as
assertions, and therefore, statements pursuant to Rule 801(a), Ariz. R. Evid. See Brown
v. Commonwealth, 487 S.E.2d 248, 251-52 (Va. App. 1997) (giving other examples of
questions containing assertions, including “Why did you stab me, Brutus?”).
¶28 As explained above, the pertinent utterance in this case is hearsay even
under the narrow approach set forth in the federal advisory committee note to the Federal
Rules of Evidence. I am less confident that our supreme court has adopted that approach
or should do so. In Chavez, this court reasoned that because our rule of evidence defining
hearsay was adopted verbatim from its counterpart in the federal rules, compare Ariz. R.
Evid. 801(a), (c), with Fed. R. Evid. 801(a), (c), our supreme court must have also
8
A line of federal cases posit that an “inquiry” is not an assertion and accordingly
cannot be a hearsay statement. See United States v. Wright, 343 F.3d 849, 865-66 (6th
Cir. 2003) (cases for that proposition). These cases contain little reasoning other than
citation to each other and the observation that, according to Webster‟s Dictionary, the
term “assertion” connotes a “positive declaration.” See, e.g., United States v. Lewis, 902
F.2d 1176, 1179 (5th Cir. 1990). And, none of these cases address more complex—yet
fairly typical—phrasing wherein positive declarations are included in an interrogatory.
Arguably, the reasoning of those cases does not contemplate the problem presented here.
18
intended to adopt all of the reasoning found in the advisory note to that federal rule. See
Chavez, 225 Ariz. 442, ¶ 7 & n.4, 239 P.3d at 763 & n.4. But our supreme court did not
include the federal advisory note as a comment to Rule 801 when it promulgated
Arizona‟s modern rules of evidence in 1977. See 115 Ariz. XXX, LI. Rather, it
generated its own comment to that rule which does not parallel the federal advisory
committee note in any respect. See Ariz. R. Evid. 801 comment. And, although our
supreme court intended to model our rules of evidence from the federal rules, it has not
hesitated to deviate from those rules when it has seen fit to do so. See Roger W.
Kaufman, The Arizona Rules of Evidence—A Comparison with the Federal Rules, 2 Ariz.
St. L.J. 365, 384 (1977) (comparing the specific provisions of Arizona Rules of Evidence
with the federal rules and noting differences); see also Ariz. R. Evid. prefatory comment
to 2012 amendments (summarizing changes to recent rule amendments and noting
differences from restyled federal rules).9
¶29 In short, our supreme court has neither expressly adopted nor rejected the
federal advisory note approach to defining which statements are subject to hearsay
analysis. That approach has substantial implications for the scope of the hearsay rule. As
seen below, its rationale has been subject to considerable criticism by commentators and
9
The majority observes that the revised wording of Rule 801(a) effective
January 1, 2012, now suggests that all written or oral assertions must be intended as
assertions to qualify as a “statement.” However, our supreme court‟s comment to that
revision states that “[t]hese changes are intended to be stylistic only. There is no intent in
the restyling to change any result in any ruling on evidence admissibility.” Ariz. R. Evid.
801 comment to 2012 amendment. I am therefore confident that our supreme court had
no intent to adopt any particular view of the federal advisory note approach when
importing the federal stylistic changes.
19
it has been rejected after thorough analysis by several jurisdictions. For those reasons, I
would submit that our supreme court‟s ultimate verdict should depend not on whether our
rules of evidence have generally paralleled the federal rules—but rather on a careful
analysis of whether the federal advisory note sets forth the most appropriate framework
for the presentation of evidence in Arizona courtrooms, a topic which my colleagues did
not purport to address in Chavez.
¶30 The bulk of the commentary provided in the federal advisory note is not
controversial. It provides a coherent framework for evaluating when conduct alone
constitutes the functional equivalent of a hearsay statement. See Fed. R. Evid. 801(a)
advisory committee note. The note logically explains that “nonverbal conduct” should
not be characterized as an assertion unless intended to be such by the actor. Id. However,
it markedly departs from the common law approach by apparently extending that
framework to verbal declarations that imply, but do not directly assert, the beliefs of an
out-of-court declarant. Id. (characterizing utterances from which a witness‟s belief may
be only inferred as “nonassertive verbal conduct” and subject to the same intentionality
analysis used for conduct); Stoddard, 887 A.2d at 569-72 (comparing common law
analysis of implied verbal assertions to federal advisory note approach).
¶31 Under the common law approach, by contrast, courts distinguish which
“implied” assertions can be characterized as hearsay based on the purpose for which the
pertinent declaration is offered by its proponent. See Stoddard, 887 A.2d at 571. For
example, if an out-of-court declaration is offered to demonstrate the truth of the implied
belief expressed therein, it is characterized as hearsay and is presumptively inadmissible
20
regardless of whether the declarant specifically intended to assert that particular belief.
See id. However, if the declaration in question is not offered to show the truth of the
implied belief, but for some other purpose, it is nonhearsay. See id.; see also Ariz. R.
Evid. 801(c). In short, the common law framework tethers the hearsay characterization—
and the necessity of adversarial testing through oath and cross-examination—to the
importance of believing the truth of the declarant‟s implied assertion in the context of the
case.
¶32 As observed above, advocates for the federal advisory note approach
explain that an unintended implied assertion is more reliable because the declarant has
not chosen to express the belief in question—and we can therefore presume the sincerity
of that belief. See Saltzburg et al., supra ¶ 20, at 801-14; see also Fed. R. Evid. 801(a)
advisory committee note (noting reduced likelihood of fabrication with nonverbal rather
than assertive conduct). For that reason, such commentators conclude that the need for
adversarial testing by cross-examination and oath are “diminished.” Saltzburg et al.,
supra ¶ 20, at 801-14.
¶33 But, the hearsay rule is designed to facilitate adversarial testing of more
than the sincerity of an out-of-court declarant‟s beliefs. Placing declarants under oath
and subjecting their beliefs to cross-examination also minimizes “the dangers of
misperception, misremembering . . . and ambiguity,” reduces the risks of exaggeration,
and allows the credibility of the witnesses to be assessed not just from the nature of the
words expressed but also from their demeanor on the witness stand. Livermore et al.,
supra ¶ 21, at 303 (itemizing purposes of hearsay rule). And, in many civil and criminal
21
cases, it is the accuracy, not the sincerity, of the witnesses‟ beliefs that are at the center of
the dispute.10 Under such circumstances, the purposes of the hearsay rule—in improving
the quality of fact-finding—would be poorly served by exempting implied assertions
from adversarial testing simply because their non-intentional nature diminishes concerns
about their sincerity.
¶34 Moreover, implied assertions, when not intended, arguably impose greater
risks of inaccuracy and ambiguity given that the declarant did not mindfully intend to
express, and did not specifically articulate, the belief in question. See Ronald J. Bacigal,
Implied Hearsay: Defusing the Battle Line Between Pragmatism and Theory, 11 S. Ill.
U. L. J. 1127, 1132 (1987) (observing that “unintended implied assertions are inherently
more ambiguous”); see also Stoddard, 887 A.2d at 575 (quoting Bacigal with approval).
And, commentators and courts have expressed skepticism about whether concerns
regarding the sincerity of a witness‟s beliefs are meaningfully diminished when those
beliefs must be inferred from the witness‟s statement. The Iowa Supreme Court has
correctly observed:
[E]ven the danger of insincerity may continue to be present in
those instances where the reliability of the direct assertion
may be questioned. If the expressed assertion is insincere,
such as a fabricated story, the implied assertion derived from
the expressed assertion will similarly be unreliable. Implied
10
For example, the sincerity of important categories of witnesses—such as
innocent bystander witnesses to crimes and accidents, expert witnesses, most law
enforcement officers, and financial and accounting witnesses as to damages in civil cases
to name a few—are seldom in serious dispute. But the reliability and accuracy of such
witnesses‟ observations and beliefs are often in dispute and can be pivotal to the outcome
of cases.
22
assertions can be no more reliable than the predicate
expressed assertion.
State v. Dullard, 668 N.W.2d 585, 594 (Iowa 2003); accord Stoddard, 887 A.2d at 575-
77; Paul R. Rice, Should Unintended Implications of Speech be Considered Nonhearsay?
The Assertive/Nonassertive Distinction under Rule 801(a) of the Federal Rules of
Evidence, 65 Temp. L. Rev. 529, 534-35 (1992).
¶35 Thus, the unintended nature of an assertion does not necessarily reduce
concerns about its sincerity—at least as to those declarants whose credibility we would
most want to test through cross-examination. At best, then, the federal advisory note
approach is a blunt tool for analyzing the sincerity of unintended assertions. At worst, it
risks exempting from adversarial testing pivotal assertions which may pose substantial
concerns about accuracy and ambiguity—and which beg for testing and clarification by
cross-examination under oath.
¶36 Of course, there are also many circumstances when the reliability of an
assertion, direct or implied, is so elevated, and the need for cross-examination so
diminished, that enforcement of the hearsay rule becomes an unnecessary impediment to
the efficient operation of our courts. See Livermore et al., supra ¶ 21, at 344
(acknowledging exclusion of all hearsay “would exact too high a price on the just
resolution of disputes”). Indeed, the federal advisory note appears to justify its approach
in part on that basis. See Fed. R. Evid. 801(a) advisory committee note.
¶37 But, to that purpose, our supreme court has promulgated rules that
recognize numerous exceptions to the exclusion of hearsay. Those rules include catch-all
23
provisions that generally allow for the admissibility of hearsay when the assertion carries
“equivalent circumstantial guarantees of trustworthiness” and is “more probative . . . than
any other evidence which the proponent can procure through reasonable efforts.” See
Ariz. R. Evid. 803, 804 (itemizing twenty-five exceptions to hearsay rule when
availability of witness immaterial and six exceptions when witness unavailable, including
catch-all under both rules).11 In my view, these express exceptions, coupled with the
catch-all provisions, provide ample guarantee that unintended implied assertions would
remain admissible when little purpose would be served by producing the declarant as a
live witness subject to cross-examination. And, that framework, as set forth in Rules 803
and 804, allows trial courts to assess the propriety of admitting such evidence with
considerably more analytical precision, tailored to the specific circumstances under
which the statement is uttered, the importance of the evidence in the case before it, and
with recourse to all of the factors bearing on the need for cross-examination.12
11
The catch-all provisions for Rules 803 and 804 have been consolidated under
new Rule 807, Ariz. R. Evid., as part of the 2012 amendments to the Arizona Rules of
Evidence.
12
For example, the implied assertions from the text messages at issue in Chavez—
that Chavez possessed drugs for sale—are reliable not because those assertions were not
specifically intended but rather because there were several such declarants (reducing the
risk any declarant had sent a text message to the wrong number or had been erroneously
referred to Chavez), because the content of the requests exposed the declarants to
potential criminal liability (and therefore had indicia of reliability analogous to the co-
conspirator and statement against interest exceptions to the hearsay rule), and because
those text messages were directed at a person who had a significant quantity of
methamphetamine, coupled with packaging materials, in his possession. See generally
225 Ariz. 442, ¶¶ 2, 6, 239 P.3d at 762-63. I submit that the court would have had
considerably less comfort in admitting a lone text message, from an out-of-court
declarant, containing the very same implied assertion, if that message came from but one
24
CONCLUSION
¶38 Under either the common law approach or the federal advisory committee
note approach, the pertinent utterance here, “[W]here is your backpack[?]” contains but
one assertion: that the backpack the declarant sought belonged to Palmer. But, as
discussed, it is a pivotal assertion in the context of the case. For the reasons stated above,
I would conclude the trial court erred in characterizing the statement as nonhearsay and
that the error was not harmless. I would therefore vacate the conviction and remand the
case for a new trial. For the reasons set forth above, supra n.7, I agree with my
colleagues that the state presented sufficient circumstantial evidence of Palmer‟s
connection to the backpack to survive a motion for judgment of acquittal.
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
declarant and was the only evidence that its recipient possessed or sold
methamphetamine.
25