State v. Swope

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

GERALD LONNY SWOPE, Appellant.

No. 1 CA-CR 13-0831
FILED 4-14-2015

Appeal from the Superior Court in Mohave County
No. S8015CR201201605
The Honorable Steven F. Conn, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
 STATE v. SWOPE
Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.

W I N T H R O P, Judge:

¶1 Gerald Lonny Swope appeals his convictions and resulting
sentences on two counts of sale of dangerous drugs (methamphetamine).
This court ordered supplemental briefing to address whether a limiting
instruction should have been given regarding the admission of the
recordings of the alleged drug sales. Because the trial court erred in
refusing to give a necessary limiting instruction, we reverse the convictions
and sentences and remand for a new trial. We further address four
additional issues likely to reoccur on remand.

FACTS AND PROCEDURAL HISTORY

¶2 A narcotics detective received information that caused Swope
to become the subject of a drug investigation. The detective arranged for
an informant to go to the residence where Swope was believed to reside
and make controlled buys of methamphetamine on three separate
occasions. On each occasion, the informant wore an audio recorder and a
transmitter to permit the detective to monitor him from outside the
residence while he made the buy. Before each buy, there were prefatory
recorded comments made by the informant, and then each transaction was
recorded. The informant purchased .59 grams of methamphetamine on the
first occasion, .26 grams on the second occasion, and .51 grams on the third
occasion.

¶3 Swope was indicted on three counts of sale of dangerous
drugs (methamphetamine), each a class 2 felony. The State lost contact with
the informant subsequent to the indictment, resulting in the informant
being unavailable to testify at trial. In the absence of the informant, the
State’s case against Swope rested entirely on the recordings of the three
drug sales and the testimony of the narcotics detective, who identified the
voice of the person he heard on two of the three recordings selling the
methamphetamine as Swope’s voice based on his prior contacts with
Swope. The jury convicted Swope on two of the counts and acquitted him

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on the third.1 The trial court sentenced Swope to concurrent, mitigated five-
years and one-month prison terms on the two convictions and further
imposed fines and fees totaling $3,746. Swope timely appealed.

ANALYSIS

I. Admission of Recordings

¶4 After learning the informant would not be testifying at trial,
Swope moved to preclude admission of the recordings of the drug sales,
arguing the informant’s statements on the recordings were hearsay and
their admission would violate his confrontation rights. The trial court
denied the motion, and the State introduced and played the recordings at
trial.

¶5 During trial, following the State’s playing of two of the three
recordings, Swope requested an instruction regarding the proper limited
use of the recordings by the jury. The request was made because at several
points on the recordings (both in approaching the residence on each
occasion and then during the transactions) the informant referred to the
person from whom he was purchasing drugs as “Gerald.” Swope argued
that the jury should be instructed that the informant’s use of that name
should not be considered for purposes of identifying the person selling the
drugs because that would constitute an improper hearsay use of the
recording. While acknowledging that “I’m sure the [S]tate is going to argue
that that is an identification of the defendant,” the trial court denied the
request, stating “I don’t know that calling someone by name is generally
intended as an assertion.”

¶6 On appeal, Swope argues that the trial court erred in
admitting the recordings of the drug transactions. Specifically, Swope
alleges the portions of the recordings that contained statements from the
informant before the drug sale were inadmissible hearsay and violated his
right to confront witnesses. The Confrontation Clause of the Sixth
Amendment prohibits the admission of testimonial hearsay from a non-
testifying witness unless that person is unavailable and the defendant had
a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S.
36, 68 (2004). The precise parameters of testimonial hearsay are still being
developed by the courts, but “a statement may be testimonial under

1 The jury found Swope guilty of the two counts where a detective
identified Swope’s voice as that of the seller on the recorded drug
transactions.

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Crawford if the declarant would reasonably expect it to be used
prosecutorially or if it was made under circumstances that would lead an
objective witness reasonably to believe the statement would be available for
use at a later trial.” State v. Parks, 211 Ariz. 19, 27, ¶ 36, 116 P.3d 631, 639
(App. 2005), aff’d on remand, 213 Ariz. 412, 142 P.3d 720 (App. 2006). Though
we generally review rulings on the admissibility of evidence for abuse of
discretion, we review rulings that implicate the Confrontation Clause de
novo. State v. Tucker, 215 Ariz. 298, 315, ¶ 61, 160 P.3d 177, 194 (2007).

¶7 There was no error by the trial court in ruling that the State
could introduce the recordings of the drug transactions themselves for the
non-hearsay purpose of proving the operative facts of the offenses charged.
See State v. Silva, 137 Ariz. 339, 341, 670 P.2d 737, 739 (App. 1983). Hearsay
is defined as an out-of-court statement offered to prove the truth of the
matter asserted. Ariz. R. Evid. 801(c); State v. Bass, 198 Ariz. 571, 577, ¶ 20,
12 P.3d 796, 802 (2000). Crawford notes that testimonial statements do not
violate the Confrontation Clause when they are used for purposes other
than the truth of the matter asserted. 541 U.S. at 59 n.9. Thus, to the extent
use of the recordings was limited to whether the conversations actually
occurred and what was said by each participant, there was no deprivation
of any right of confrontation. See Silva, 137 Ariz. at 341, 670 P.2d at 739; see
also Dutton v. Evans, 400 U.S. 74, 88 (1970) (holding neither hearsay rule nor
confrontation clause prevents admission of evidence of what is said; rather,
they merely restrict “proof of fact through extrajudicial statements”). Here,
there were two declarants: the informant and Swope. Swope’s statements
were party admissions and thus did not constitute hearsay under Ariz. R.
Evid. 801(d)(2)(A). The informant’s statements, however, may have
constituted hearsay if not used for a non-hearsay purpose. See Crawford at
59 n.9.

¶8 The problem with admission of certain portions of the
recordings was that the jury may have improperly considered the evidence
or applied it in an improper manner. In particular, unless appropriately
instructed, it was possible for the jury to consider the fact that the informant
referred to “Gerald” during the transactions not only as evidence that the
seller’s name is Gerald, but also to support a conclusion that the seller was,
in fact, Gerald Swope. Such use would violate the rule against hearsay as
that would constitute an assertion that the seller was in fact named Gerald.
In addition, given the unavailability of the informant for cross-examination
at trial, this use of the informant’s recorded statements would violate the
Confrontation Clause as the recordings were deliberately made as part of a
police investigation for the express purpose of use at trial in a criminal case
against the seller and are therefore “testimonial” under Crawford.

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¶9 Where evidence is admissible for one purpose, but not for
another, the Rules of Evidence do not preclude its admission. Readenour v.
Marion Power Shovel, 149 Ariz. 442, 449, 719 P.2d 1058, 1065 (1986). “To
exclude the evidence of mixed admissibility entirely in jury cases would
hardly be appropriate since its exclusion might well deny the jury access to
facts which are essential for reaching a reasonably accurate decision.” Id.
(quoting J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 105[2] at 105-11
(1985)). The portions of the recordings that contain statements made by the
informant before the drug-sale were hearsay and inadmissible. The portions
of the recordings that document the alleged drug sales, however, were
admissible for a proper non-hearsay use, and there was no error by the trial
court in admitting these portions of the recordings.

¶10 The trial court did err, however, in failing to limit the use of
the recordings to their proper non-hearsay purpose. In supplemental
briefing, the State contends Swope waived this issue on appeal, the
recordings were admissible in their entirety, and even if a limiting
instruction was required, the error was harmless. We disagree. The
Arizona Rules of Evidence provide: “If the court admits evidence that is
admissible against a party or for a purpose -- but not against another party
or for another purpose -- the court, on timely request, must restrict the
evidence to its proper scope and instruct the jury accordingly.” Ariz. R.
Evid. 105. “Rule 105 is mandatory, not discretionary; once evidence
admissible for one purpose but inadmissible for another is admitted, the
trial court cannot refuse a requested limiting instruction.” Readenour, 149
Ariz. at 450, 719 P.2d at 1066 (citations and internal quotation marks
omitted). Given the mandatory nature of Rule 105, the trial court was
required to instruct the jury on the limited use of the recordings, and the
failure to do so was clear error. See id. at 451, 719 P.2d at 1067.

¶11 “When an issue is raised but erroneously ruled on by the trial
court, this court reviews for harmless error.” State v. Bible, 175 Ariz. 549,
588, 858 P.2d 1152, 1191 (1993). Error is harmless only if we can conclude
beyond a reasonable doubt that the error did not contribute to or affect the
verdict. State v. Lundstrom, 161 Ariz. 141, 150 & n.11, 776 P.2d 1067, 1076 &
n.11 (1989). “The inquiry . . . is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely unattributable to
the error.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). In other words,
“[w]e must be confident beyond a reasonable doubt that the error had no
influence on the jury’s judgment.” Bible, 175 Ariz. at 588, 858 P.2d at 1191.

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¶12 We are unable to find the absence of a limiting instruction to
be harmless. The central issue at trial was whether Swope was the person
who sold the methamphetamine to the informant. The statements by the
informant during the transactions referring to the person he was interacting
with as Gerald went directly to this issue. Furthermore, during her closing
argument, the prosecutor repeatedly referenced the fact that informant
stated the name Gerald when meeting with the seller in arguing that Swope
was guilty of selling the methamphetamine to the informant. Finally, the
only other evidence identifying the seller as Swope was the detective who
testified that he recognized Swope’s voice based on contacts with him six
years earlier. Because the jury may have improperly used the informant’s
mention of the name Gerald in regards to the seller to bolster the detective’s
identification of Swope’s voice, we cannot say that the guilty verdicts
actually returned in this trial were surely not attributable to the error.
Accordingly, we reverse Swope’s convictions and sentences and remand
for a new trial or other proceedings consistent with this decision.

¶13 Although our ruling on this issue renders Swope’s remaining
arguments for reversal moot, we nonetheless address four additional issues
raised by Swope on appeal that are likely to reoccur on retrial. See State v.
Miguel, 125 Ariz. 538, 541, 611 P.2d 125, 128 (App. 1980).

II. Impeachment of Informant

¶14 Swope contends the trial court erred by refusing to allow him
to impeach the non-testifying informant. Specifically, Swope sought to
introduce evidence that the informant had a prior misdemeanor conviction
for false reporting and that the informant had incorrectly told the detective
that Swope’s wife was present during one of the drug buys. The trial court
refused to allow the proposed evidence, ruling that because the informant
was not a witness at trial, the evidence was not admissible to impeach him.
We review a trial court’s ruling on the admissibility of evidence for abuse
of discretion. State v. Rose, 231 Ariz. 500, 513, ¶ 62, 297 P.3d 906, 919 (2013)
(internal citation omitted).

¶15 Relying on Arizona Evidence Rule 806, Swope contends the
trial court erred in not allowing his proposed impeachment evidence. This
rule only applies when hearsay statements (or certain other statements
admitted under Rule 801(d)(2) exclusions) by the declarant sought to be
impeached have been admitted. State v. Dunlap, 187 Ariz. 441, 457, 930 P.2d
518, 534 (App. 1996). In this case, assuming arguendo that the trial court
would have given a limiting instruction regarding the use of the recordings,
there would be no hearsay statements by the informant admitted at trial

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that would render him subject to impeachment. The portions of the
recordings that included statements by the informant were introduced
solely for the purpose of proving the operative facts of the charged crimes,
not to prove the truth of any matter asserted by the informant. As discussed
above, reversal is required in this case because the trial court failed to give
an instruction informing the jury of the limited non-hearsay use of the
evidence. On remand, and assuming the informant is still unavailable and
a proper limiting instruction is given, the trial court need not admit the
requested impeachment evidence as the informant’s statements will not be
admitted for hearsay purposes, and this will not violate Rule 806.

III. Interpretation of Conversations

¶16 Swope also argues that the trial court erred in allowing two
narcotics detectives to interpret certain words and phrases used by the
informant and the seller during the recorded drug purchases. We review
the admission of expert testimony for abuse of discretion. State v. Hyde, 186
Ariz. 252, 276, 921 P.2d 655, 679 (1996) (internal citation omitted).

¶17 The admissibility of expert testimony is governed by Arizona
Evidence Rule 702. This rule states, in pertinent part:

A witness who is qualified as an expert by
knowledge, skill, expertise, training, or
education may testify in the form of an opinion
or otherwise if the expert’s scientific, technical,
or other specialized knowledge will help the
trier of fact to understand the evidence or to
determine a fact in issue.

Ariz. R. Evid. 702(a).

¶18 The narcotics detectives were found by the trial court to be
qualified as experts on the illegal drug trade, and Swope does not contest
their qualifications on appeal. This court has repeatedly held that police
officers may testify as expert witnesses regarding the meaning of drug code
and language, noting that “[c]ourts frequently permit expert testimony on
such matters and even allow experts to interpret writings or conversations.”
State v. Walker, 181 Ariz. 475, 480, 891 P.2d 942, 947 (App. 1995) (and cases
cited therein); see also State v. Nightwine, 137 Ariz. 499, 503, 671 P.2d 1289,
1293 (App. 1983) (holding expert testimony interpreting drug language in
recorded calls was properly admitted because it assisted the jury in
understanding the evidence). There was no error in the admission of the
detectives’ expert testimony.

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IV. Improper Vouching of a Witness

¶19 Swope contends the State improperly vouched for the
credibility of the informant. Swope identifies specific statements made
during trial by Detectives Sturgill and Stock that allegedly vouch for the
informant’s credibility. First, on redirect, the State asked Detective Sturgill
whether the informant had ever given him “suspect” information, to which
Detective Sturgill answered, “No, he did not.” The State followed this
answer by asking Detective Sturgill if his work with the informant led to
his trust of the informant, to which the Detective answered, “That is
correct.” Next, during Detective Stock’s testimony, the State asked him if
there was “any time where you had to pull [the informant’s] reliability, or
cut [the informant] off from being an informant,” to which Detective Stock
responded “No, ma’am.” Swope did not object to these statements during
trial.

¶20 “It is black letter law that it is improper for a prosecutor to
vouch for a witness.” State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204
(1993). “Two forms of impermissible prosecutorial vouching exist: (1)
when the prosecutor places the prestige of the government behind its
witness, and (2) where the prosecutor suggests that information not
presented to the jury supports the witness’s testimony.” Id. (internal
citation omitted). “The first type of vouching consists of personal
assurances of a witness’ truthfulness. The second type involves
prosecutorial remarks that bolster a witness’ credibility by reference to
material outside the record.” State v. Dunlap, 187 Ariz. 441, 462, 930 P.2d
518, 539 (App. 1996).

¶21 Under the unique circumstances of this case – particularly
where the informant is not available to be cross-examined – we agree that
it was error for the prosecutor to seek to bolster the credibility of the missing
informant by way of other government witnesses commenting on his
credibility. Although the questions and answers at issue were elicited on
redirect examination after cross-examination, and therefore were arguably
permissible to rebut the insinuation on cross-examination that the
informant was unreliable, the critical difference here is that the informant
did not testify. The jury did not have any opportunity to evaluate his
credibility, only the statements of Detectives Sturgill and Stock vouching
for the informant’s credibility. Moreover, the informant’s absence
precluded Swope from impeaching the informant’s credibility. We
conclude this was improper under the present circumstances. In absence
of the informant, allowing such testimony constituted error.

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V. Instruction on Testimony by Law Enforcement Officers

¶22 Finally, Swope argues the trial court erred in refusing to give
an instruction concerning the credibility of testimony by law enforcement
officers. We review a trial court’s denial of a requested jury instruction for
abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006)
(internal citation omitted).

¶23 During settlement of jury instructions, Swope requested the
following instruction:

The testimony of a law enforcement officer is
not entitled to any greater or lesser importance
or believability merely because of the fact that
the witness is a law enforcement officer. You
are to consider the testimony of a police officer
just as you would the testimony of any other
witness.

RAJI Standard Instruction 34. In declining to give this instruction, the trial
court stated that it did not believe there was any need to single out any
particular profession for an instruction on credibility in light of the general
credibility instruction given with respect to all witnesses. In addition, the
trial court noted that because only law enforcement witnesses testified at
trial, it was unnecessary to contrast the testimony of law enforcement
witnesses with other non-witnesses.

¶24 “A defendant is entitled to a jury instruction on any theory
reasonably supported by the evidence.” State v. Moody, 208 Ariz. 424, 468,
¶ 197, 94 P.3d 1119, 1162 (2004). A trial court, however, is not required to
give a requested jury instruction when “its substance is adequately covered
by other instructions.” State v. Mott, 187 Ariz. 536, 546, 931 P.2d 1046, 1056
(1997).

¶25 Here, the trial court gave a general instruction applicable to
the credibility of all witnesses. The instruction directed the jurors to decide
the accuracy of each witness’ testimony taking into account their ability and
opportunity to observe, their memory, their manner while testifying, any
motive or prejudices they might have, and any inconsistent statements they
might have made, in light of all of the evidence in the case. This instruction
adequately set forth the law in regards to the determination of witness
credibility. It is the responsibility of the jury to determine the credibility of

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the police officers’ testimony.2 Moreover, because the only testifying
witnesses were law enforcement officers, no specific additional instruction
regarding the fact that testimony of a law enforcement officer is entitled to
no greater or lesser weight than that of any other witness was necessary.
See State v. Walters, 155 Ariz. 548, 552-53, 748 P.2d 777, 781-82 (App. 1987)
(holding no error in refusing to give instruction regarding weight of law
enforcement testimony where all witnesses were law enforcement officers).
The trial court did not abuse its discretion in refusing to give the requested
instruction.

CONCLUSION

¶26 For the foregoing reasons, we reverse Swope’s convictions
and sentences and remand for a new trial or other proceedings consistent
with this decision.

:ama

2 In addition, the trial court questioned the potential jurors during the
jury selection process regarding whether they would give more or less
consideration to law enforcement testimony. Only one potential juror
answered affirmatively and he was subsequently excused.

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