SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ex rel., ) Arizona Supreme Court
RICHARD M. ROMLEY, Maricopa ) No. CV-02-0267-PR
County Attorney, )
) Court of Appeals
Petitioner, ) Division One
) Nos. 1 CA-SA 02-0125
v. ) 1 CA-SA 02-0126
) (Consolidated)
THE HONORABLE GREGORY MARTIN and )
THE HONORABLE JONATHAN H. ) Maricopa County
SCHWARTZ, JUDGES of the SUPERIOR ) Superior Court
COURT of the STATE OF ARIZONA, in ) Nos. CR 01-018779
and for the County of MARICOPA, ) CR 02-003676
)
Respondent Judges, )
) O P I N I O N
CRUZ OLIVAS LANDEROS and STEVEN )
P. STEADMAN, )
)
Real Parties in Interest. )
)
__________________________________)
Opinion of the Court of Appeals, Division One
203 Ariz. 46, 49 P.2d 1142
AFFIRMED
_____
RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY Phoenix
By Diane Gunnels Rowley, Deputy County
Attorney
Attorneys for Petitioner
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Christopher Johns, Deputy Public
Defender
Attorneys for Real Party in Interest
Cruz Olivas Landeros
JAMES T. MYRES Phoenix
Attorney for Real Party in Interest
Steven P. Steadman
_____
H U R W I T Z, Justice
¶1 Under the “Drug Medicalization, Prevention, and
Control Act of 1996,” an initiative proposal adopted by the
voters as Proposition 200 and subsequently codified at Arizona
Revised Statutes (“A.R.S.”) section 13-901.01 (Supp. 2002), a
person convicted for the first or second time of “personal
possession or use of a controlled substance or drug
paraphernalia” may not be sentenced to a term of imprisonment.1
We granted review in this case to decide whether such
“Proposition 200 convictions” can be used for impeachment
purposes under Rule 609(a)(1) of the Arizona Rules of Evidence,
which allows evidence of a prior conviction to be used for the
purpose of attacking the credibility of a witness only if the
“crime . . . was punishable by death or imprisonment in excess
of one year under the law under which the witness was
convicted.”
I.
¶2 Insofar as it pertains to the question before us, the
factual background in these two consolidated cases is
straightforward and undisputed. The two real parties in
interest, Steven P. Steadman and Cruz Olivas Landeros
1
Calik v. Kongable, 195 Ariz. 496, 498-99 ¶¶ 11-14, 990
P.2d 1055, 1057-58 (1999), details the history of Proposition
200 and § 13-901.01.
2
(collectively “defendants”), were each charged separately by the
State with the commission of a felony, Steadman with theft of a
means of transportation, a class 3 felony, and Landeros with
knowingly possessing narcotic drugs for sale, a class 2 felony.
Each defendant had previously been convicted of one or more
offenses involving the personal possession or use of a
controlled substance or drug paraphernalia. These previous
convictions involved first- or second-time offenses, and each
defendant was accordingly sentenced pursuant to Proposition 200
to a term of probation. See A.R.S. § 13-901.01(A) (providing
that a court “shall . . . place the person[s] on probation”).
¶3 Each defendant moved to preclude the State from using
these prior Proposition 200 convictions2 for impeachment purposes
at trial, and, in each case, the superior court granted the
motion. The State filed a special action in the court of
appeals in each case. The court of appeals consolidated the two
cases, accepted jurisdiction but denied relief, holding that
2
Certain convictions for possession or use of drugs or
drug paraphernalia are excluded from the mandatory probation
provisions of § 13-901.01(A). For example, § 13-901.01(B)
provides that a person convicted of a violent crime is “not
eligible for probation”; § 13-901.01(H) provides likewise with
respect to persons “convicted three times of personal possession
or use of a controlled substance or drug paraphernalia.” See
also § 13-901.01(C) (excluding from subsection (A) “possession
for sale, production, manufacturing or transportation for sale
of any controlled substance”). None of these factors is present
in these cases, and we therefore use the term “Proposition 200
convictions” to refer to convictions subject to the mandatory
probation requirements of § 13-901.01(A).
3
Proposition 200 convictions may not be used for impeachment
purposes under Rule 609(a)(1) because they are not “punishable
by death or imprisonment in excess of one year.” State ex rel.
Romley v. Martin, 203 Ariz. 46, 48 ¶ 8, 49 P.3d 1142, 1144 (App.
2002).
¶4 The State filed a petition for review, and we granted
review to address this issue of statewide concern. We have
jurisdiction pursuant to Article 6, Section 5(3) of the Arizona
Constitution, Arizona Rule of Civil Appellate Procedure 23, and
A.R.S. § 12-120.24 (2003).
II.
¶5 Arizona Rule of Evidence 609(a) allows evidence “that
the witness has been convicted of a crime” to be admitted “[f]or
the purpose of attacking the credibility of a witness” in two
general circumstances. If the crime for which the witness was
convicted “involved dishonesty or false statement,” evidence of
the prior conviction is admissible “regardless of the
punishment.” Ariz. R. Evid. 609(a)(2). In all other
circumstances, Rule 609(a)(1) governs, and the evidence of the
prior conviction is admissible only “if the crime . . . was
punishable by death or imprisonment in excess of one year under
the law under which the witness was convicted.” Because the
defendants’ prior convictions did not involve dishonesty or
4
false statement, the issue in this case is whether they are
covered by Rule 609(a)(1).
¶6 In interpreting Rule 609(a)(1), we apply the same
principles used in construing statutes. See State ex rel.
Romley v. Stewart, 168 Ariz. 167, 168-69, 812 P.2d 985, 986-87
(1991); State v. Baca, 187 Ariz. 61, 63, 926 P.2d 528, 530 (App.
1996).3 Our first point of reference, of course, is the
statutory language, which we expect to be “the best and most
reliable index of a statute’s meaning.” State v. Williams, 175
Ariz. 98, 100, 851 P.2d 131, 133 (1993). We interpret that
language in such a way as to give it a fair and sensible
meaning. See Robinson v. Lintz, 101 Ariz. 448, 452, 420 P.2d
923, 927 (1966).
A.
¶7 Rule 609(a)(1) provides that a prior conviction not
involving dishonesty or false statement can be used for
impeachment purposes only “if the crime (1) was punishable by
death or imprisonment in excess of one year under the law under
which the witness was convicted.” It is common ground that
these defendants could not have been punished for their prior
crimes by imprisonment in excess of one year — or imprisonment
3
We review rulings involving the interpretation of a
court rule de novo. See State ex rel. Napolitano v. Brown &
Williamson Tobacco Corp., 196 Ariz. 382, 390 ¶ 37, 998 P.2d
1055, 1063 (2000).
5
at all — under A.R.S. § 13-901.01(A). The most logical
interpretation of Rule 609(a)(1) is that the defendants’
previous Proposition 200 convictions cannot be used for
impeachment in their pending trials, because their crimes were
not, in the words of the Rule, “punishable by death or
imprisonment in excess of one year.”
¶8 The State does not contest that these defendants could
not have been imprisoned on the basis of their previous
convictions. Rather, it urges us to focus on the phrase “under
the law under which the witness was convicted,” which the State
argues refers only to the substantive “crime” that was the
subject of the previous conviction. Landeros, for example, was
previously convicted of possession of drug paraphernalia in
violation of A.R.S. § 13-3415(A) (1989), and possession of a
narcotic drug, in violation of A.R.S. § 13-3408(A)(1) (1989).4
Possession of drug paraphernalia is punishable as a class 6
felony, see A.R.S. § 13-3415(A), while possession of a dangerous
drug is punishable as a class 4 felony, see A.R.S. § 13-
4
Landeros was sentenced under a prior version of § 13-
901.01(A), which did not include “use of drug paraphernalia” in
its listing of drug offenses for which probation was mandatory.
See A.R.S. § 13-901.01(A) (Supp. 1997). However, this Court has
interpreted that prior statute as encompassing “use of drug
paraphernalia.” See State v. Estrada, 201 Ariz. 247, 252 ¶¶ 21-
24, 34 P.3d 356, 361 (2001). Thus, Landeros was required under
Proposition 200 to be sentenced to a term of probation for his
drug paraphernalia conviction.
6
3408(B)(1). A class 4 felony is generally punishable by a
sentence ranging from 1.5 years to 3 years in prison, while a
class six felony is generally punishable by a sentence of 6
months to 1.5 years. See A.R.S. § 13-702(A) (2001). The State
thus contends that Rule 609(a)(1) applies, since the “crimes”
that were the subject of the defendants’ prior convictions were
punishable by imprisonment for more than one year, even if these
particular defendants could not have been so punished under
Proposition 200.
¶9 We have, however, previously rejected a similar
construction of Rule 609(a)(1). In State v. Malloy, 131 Ariz.
125, 639 P.2d 315 (1981), the defendant had previously been
convicted of third degree burglary, a class 6 felony. While the
punishment for this crime could have exceeded one year’s
imprisonment, the superior court exercised its discretion under
A.R.S. § 13-702(G) (1978) to enter a judgment of conviction for
a class 1 misdemeanor; the maximum sentence was therefore no
greater than six months in jail. See id. at 126-27, 639 P.2d at
316-17. Thus, in Malloy, “the law under which the witness was
convicted” did not make his crime punishable by imprisonment in
excess of one year. We accordingly held that “it is clear that
the appellant’s prior conviction does not come within Rule
609(a)(1).” Id. at 127, 639 P.2d at 317.
7
¶10 The State’s proffered interpretation of Rule 609(a)(1)
is not only contrary to Malloy, but also suffers from a serious
internal inconsistency. The State urges us to refer only to the
substantive statutes defining the crime to determine whether a
crime is “punishable by . . . imprisonment in excess of one year
under the law under which the witness was convicted”; put
differently, we are asked to focus only on the “convicting”
statute, and not the “sentencing” statute. But the “convicting”
statutes applicable to drug offenses in Arizona, like most of
our criminal statutes, do not themselves expressly prescribe the
potential length of a prison sentence. Thus, A.R.S. § 13-3408,
which governs possession of a narcotic drug, simply provides
that a person violating its provisions “is guilty of a class 4
felony.” A.R.S. § 13-3408(B)(1). The court must then refer to
the statutes governing sentences for class 4 felonies, A.R.S. §§
13-701 to -702.02 — the so-called “sentencing” statutes — in
order to determine the possible sentences. The State therefore
cannot contest that these “sentencing statutes” are part of “the
law under which the witness was convicted” for purposes of Rule
609(a)(1).
¶11 But there is, of course, another “sentencing” statute
applicable to Proposition 200 convictions. It is A.R.S. § 13-
901.01(A), which provides, “[n]otwithstanding any law to the
contrary,” that persons in the position of these defendants may
8
never be sentenced to imprisonment. Because we must look
outside the “convicting” statute to “sentencing statutes” in
order to determine the possible punishment for a crime, it
cannot logically be argued that § 13-901.01(A), which supersedes
all other sentencing statutes for Proposition 200 convictions,
is somehow wholly irrelevant to the determination under Rule
609(a)(1) of whether a crime “was punishable by death or
imprisonment in excess of one year under the law under which the
witness was convicted.”
¶12 In short, the most sensible and logical reading of
Rule 609(a)(1) is that the prior conviction must involve a crime
for which imprisonment in excess of one year is at least
possible under the applicable law. Because such a sentence
simply was not possible for these defendants with respect to
their prior Proposition 200 convictions, Rule 609(a)(1) appears
on its face to bar use of these convictions to impeach the
defendants’ credibility in their upcoming trials.5
5
State v. Skramstad, 433 N.W.2d 449 (Minn. Ct. App.
1998), upon which the State relies, is premised on the notion
that a sentence of greater than one year was “possible” at the
time of the defendant’s conviction, and that the court’s
subsequent designation of the crime as a misdemeanor after the
defendant had successfully completed probation did not affect
its use for impeachment under Minnesota’s version of Rule
609(a)(1). See id. at 453 (holding that Rule 609(a)(1)
addresses “the maximum sentence possible at the time of
conviction, not the sentence which was actually given nor any
subsequent alteration of the defendant’s record”). But even
assuming arguendo that Skramstad was correctly decided on its
9
B.
¶13 The State also argues that any interpretation of Rule
609(a)(1) as excluding the use of Proposition 200 convictions
for impeachment purposes is foreclosed by our recent decision in
State v. Christian, ___ Ariz. ___, 66 P.3d 1241 (2003).
Christian held that a Proposition 200 conviction can be used as
a “historical prior felony” conviction to enhance a defendant’s
sentence pursuant to A.R.S. § 13-604(V)(1) (2001).
¶14 The State begins from the premise that Christian and
State v. Thues, 203 Ariz. 339, 54 P.3d 368 (App. 2002),
establish that Proposition 200 did not alter the status of
convictions for various drug offenses as “felonies.” The State
then argues that the “in excess of one year” language in Rule
609(a)(1) is really a shorthand for “felony,” and that to
disallow use of Proposition 200 convictions for impeachment
purposes is thus inconsistent with Christian.
¶15 We see no tension between Christian and a construction
of Rule 609(a)(1) that excludes use of Proposition 200
convictions for impeachment. The statute at issue in Christian,
A.R.S. § 13-604(V)(1), permitted enhancement of sentences on the
basis of a “prior felony conviction” that met certain statutory
__________________________________
facts, it is of no aid to the State here, since the “maximum
sentence possible” at the time of the defendants’ prior
convictions was probation.
10
criteria. We held that Proposition 200 convictions met the
statutory criteria. See also Thues, 203 Ariz. at 341 ¶ 10, 54
P.3d at 370 (holding that Proposition 200 convictions are
felonies for sentencing enhancement purposes notwithstanding the
inability of a court to impose a term of imprisonment).
¶16 In contrast, Rule 609(a)(1) never mentions the word
“felony,” but instead speaks of crimes “punishable by death and
imprisonment in excess of one year.” While the State is correct
in noting that the traditional distinction between a felony and
a misdemeanor is the possibility of a sentence in excess of one
year,6 the history of Federal Rule of Evidence 609(a)(1) (upon
which the Arizona Rule is modeled) indicates that the
“imprisonment in excess of one year” language was expressly
designed to avoid embroiling the courts in technical disputes as
to whether a particular crime was a misdemeanor or a felony
under state law. The Advisory Committee Notes to the 1972
Proposed Rules explain that “[f]or evaluation of the crime in
terms of seriousness, reference is made to the congressional
measurement of felony (subject to imprisonment in excess of one
6
See generally Advisory Committee Note to Fed. R. Evid.
609(a) (1972) (“For purposes of impeachment, crimes are divided
into two categories by the rule: (1) those of what is generally
regarded as felony grade, without particular regard to the
nature of the offense, and (2) those involving dishonesty or
false statement, without regard to the grade of the offense.”).
11
year) rather than adopting state definitions which vary
considerably.” Id.
¶17 Thus, the court of appeals’ construction of Rule
609(a)(1) is perfectly consistent with Christian and Thues.
While Christian and Thues make plain that Proposition 200
convictions are felonies, Rule 609(a)(1) turns not on the
technical definition of a felony, but rather on the maximum
potential sentence that could be imposed for the prior crime.
Because A.R.S. § 13-901.01 makes clear that a term of
imprisonment cannot be imposed on the basis of a Proposition 200
conviction, the fact that these convictions involve felonies is
simply irrelevant under the Rule.
C.
¶18 The State also argues that the purposes behind
Proposition 200, which was designed to treat a defendant’s first
two personal drug offenses as a medical matter by providing
probation instead of incarceration and requiring drug education
and treatment for such offenses, see State v. Estrada, 201 Ariz.
247, 249 ¶ 2, 34 P.3d 356, 358 (2001), would not be furthered by
excluding Proposition 200 convictions from Rule 609(a)(1). But
this argument misses the point. All parties concede that
Proposition 200 simply does not address the issue before us
today. The question at hand is whether Rule 609(a)(1) permits
Proposition 200 convictions to be used for impeachment, and that
12
question cannot be resolved by speculation about what position
the proponents of Proposition 200 would have taken on the point
had they only considered it.
¶19 What is not subject to dispute is that the voters who
approved Proposition 200 adopted legislation expressly providing
that Proposition 200 convictions can never result in
imprisonment in excess of one year. Rule 609(a)(1), in turn,
makes plain that only convictions that subject the defendant to
such a potential term of imprisonment are serious enough to be
used to impeach a witness’ credibility at trial. Thus, while
Proposition 200 may not have removed all collateral consequences
from Proposition 200 convictions, see, e.g., Christian, __ Ariz.
at __ ¶ 20, 66 P.3d at 1247, it plainly placed such convictions
outside the purview of Rule 609(a)(1).
D.
¶20 Finally, the State argues that it would be irrational
for this Court to interpret Rule 609(a)(1) as forbidding the use
of a first and second drug use conviction for impeachment
purposes, but allow a third conviction for precisely the same
conduct to be so used. But while Rule 609(a)(1) might have made
a different policy choice, we see nothing irrational in its
central premise — that only those crimes that the legislative
power deems sufficiently serious to merit punishment in excess
13
of one year in prison are to be used for impeachment purposes of
the convicted witness.
¶21 Indeed, the legislature has decided in contexts other
than drug offenses that a third conviction for an offense should
be treated more seriously than the first two. Under A.R.S. §
28-1381(C) (Supp. 2001), a first or second conviction for
driving under the influence of alcohol or drugs is a class 1
misdemeanor. However, when the defendant engages in precisely
the same conduct for a third time within a period of sixty
months after the first offense, the crime is treated as a class
4 felony. See A.R.S. § 28-1383(A)(2) (Supp. 2001) (defining the
third offense as “aggravated driving under the influence”);
A.R.S. § 28-1383(J)(1) (providing that aggravated driving under
the influence is a class 4 felony).
¶22 Thus, under Rule 609(a)(1), the first and second
convictions for driving under the influence of alcohol or drugs
could not be used to impeach the convicted witness’ credibility
because the legislature made the decision that these convictions
should be punished by jail time of less than one year. The
third offense, however, could be so used, because the
legislature has made the decision that such repeat offenses
ought to be punishable by imprisonment in excess of one year.
¶23 The legislature can constitutionally treat the third
occurrence of criminal conduct in a more serious fashion than
14
the first and second occurrences of precisely the same conduct.
See State v. Renteria, 126 Ariz. 591, 594, 617 P.2d 543, 546
(App. 1979) (upholding against an equal protection attack a
prior version of the drunk driving statutes which prescribed a
mandatory sixty-day sentence for those with two prior
convictions in the past twenty-four months, and concluding that
classifying repeat offenders more harshly than first- or second-
time offenders is rational). That is precisely what Proposition
200 does with respect to first- or second-time drug offenders.
By treating a third drug offense as a more serious crime than
the first two such offenses, Proposition 200 draws precisely the
same line as the drunk driving statutes, with precisely the same
Rule 609(a)(1) consequences.
III.
¶24 For the foregoing reasons, we conclude that
Proposition 200 convictions may not be used for impeachment
purposes under Rule 609(a)(1). Accordingly, we affirm the court
of appeals’ opinion denying the State’s request for special
action relief.
____
Andrew D. Hurwitz, Justice
CONCURRING:
_
Charles E. Jones, Chief Justice
15
_
Ruth V. McGregor, Vice Chief Justice
_
Rebecca White Berch, Justice
_
Michael D. Ryan, Justice
16
State Ex Rel. Romley v. Martin
Court: Arizona Supreme Court
Date filed: 2003-06-05
Citations: 69 P.3d 1000, 205 Ariz. 279
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