Opinion
2 CA-CR 2023-0026
11-28-2023
The State of Arizona, Appellee, v. Eugene Echols, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Elizabeth M. Hale, Lakeside Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202100738 The Honorable Steven J. Fuller, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee
Elizabeth M. Hale, Lakeside Counsel for Appellant
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 Eugene Echols appeals from his conviction and sentence for misconduct involving weapons. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Echols. State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In March 2021, Echols and G.N. got into an argument outside of an apartment in Casa Grande. The argument turned into a physical altercation, after which Echols walked away and G.N. went inside of the apartment. Echols subsequently entered the apartment and apologized to G.N.
¶3 Police officers responded to the scene after receiving a 9-1-1 call from a neighbor reporting that two men had gotten into a physical altercation and that one of them had a gun. Upon arrival, an officer saw Echols-who matched the description of the man with the gun given by the 9-1-1 caller-shaking hands with G.N. inside the apartment. The officer instructed the two men to put their hands in the air and walk towards him. Echols instead ducked behind a refrigerator, hiding himself from the officer's view. G.N. saw Echols bend down next to the refrigerator and heard something fall to the ground. Echols then came out from behind the refrigerator and complied with the officer's instructions. The officer discovered a handgun inside of a box behind the refrigerator, and Echols later admitted to a detective and G.N. that the gun belonged to him.
¶4 The state charged Echols, a convicted felon, with misconduct involving weapons for knowingly possessing a handgun while being a prohibited possessor. See A.R.S. § 13-3102(A)(4). After a two-day jury trial, Echols was convicted as charged and sentenced to nine years in prison. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶5 Echols argues on appeal that the trial court "improperly admitted an entire 911 call made by a third party who did not testify when the call was testimonial," thereby violating his Sixth Amendment right to confront the witnesses against him. Further, he contends, the caller's statements were inadmissible because they "did not fall under a hearsay exception." We generally review evidentiary rulings for an abuse of discretion, but we review such rulings de novo when they implicate the Confrontation Clause. State v. Ellison, 213 Ariz. 116, ¶ 42 (2006).
¶6 Before jury selection began on the first day of trial, Echols moved to preclude the recording of the 9-1-1 call from being played or published to the jury. In the recording, the caller can be heard stating, "There's a fight right here with the neighbors and one of them has a gun." She also said the two men had been fighting and that one of them had gone inside an apartment, "got[ten] a gun," and "went to go after" the other, whom she described as a maintenance worker. The caller stated she had gone inside her apartment at that point. The 9-1-1 operator informed the caller that officers were on their way and asked her how long the incident had "been going on." She stated it had occurred "just right now, it just happened like five minutes ago." After asking to remain anonymous, she identified the man with the gun as a resident of a neighboring apartment, describing him as a "black guy" wearing a "white shirt" and "black jeans." The operator told the caller that "an officer [was] pulling up right now." The caller then informed the operator that the men were "in the alley now," she had "just seen the black guy walk to the alley through the window," and "the maintenance man is in the alley 'cause that's where he's working at." She explained she had seen the resident come out of his apartment carrying the gun in his hand before putting it into his waistband. At the end of the call, the operator told the caller that police had arrived at the scene.
¶7 Echols argued at trial that the state had failed to identify the 9-1-1 caller and "get that person in court," depriving him of a "meaningful opportunity to confront" the caller as to the "v[e]racity of [her] statements." As such, Echols asserted the recording, which included the caller's statement that "a black man . . . was carrying a gun," was "overwhelmingly prejudicial" given the fact that the caller was "the only person who saw [Echols] with a gun." The state responded that the 9-1-1 call was admissible as a present sense impression because the caller had not been discussing a "past incident" but rather "[w]hat she saw then and there" and "why she needed" assistance from law enforcement.
¶8 The trial court concluded the 9-1-1 caller's statements had been "made while the declarant witness was . . . observing or recently observed the incident," and, as such, they fell under the present sense impression exception to the rule against hearsay. Further, it found the statements were not testimonial as the call "was not made in preparation of trial." Accordingly, the court denied Echols's motion.
¶9 The next day, Echols asked the trial court to reconsider its denial of his motion, asserting the "entire 911 call is testimonial" because the incident had occurred "about 5 minutes earlier" and "was no longer happening in [the caller's] sight." Alternatively, Echols argued, even if the statements made during the first minute of the call were not testimonial and met the requirements for a present sense impression, the same could not be said for statements made during the remainder of the call. Specifically, he asserted that, after officers had been dispatched to the scene, the caller continued to answer the 9-1-1 operator's questions about the altercation- including whether the fight had been physical or verbal and where the parties involved lived. Thus, Echols argued, this "background information" was "all testimony" and irrelevant to "the exigent circumstance of a person with a gun." The state countered that the 9-1-1 call constituted a nontestimonial excited utterance or present sense impression, pointing to the fact that, over halfway into the call, the caller was still "flustered," "asking for help," and "saying I am looking out of my window and I see him walking right now with a gun."
¶10 The trial court denied Echols's "motion to reconsider," explaining that while it lacked "evidence to make a finding of an excited utterance," the 9-1-1 call was admissible as a present sense impression. The court noted that both Echols and the state agreed the call had occurred "within 5 minutes . . . of perceiving the event while the declarant was still on the phone with the police" and again concluded the statements were nontestimonial. The recording was admitted into evidence and subsequently played for the jury.
¶11 We first address Echols's argument that he was denied his Sixth Amendment right to confrontation. The Confrontation Clause generally prohibits "admission of testimonial evidence from a declarant who does not appear at trial unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant." State v. King, 213 Ariz. 632, ¶ 17 (App. 2006). This prohibition applies to all testimonial statements, even those otherwise subject to hearsay exceptions. See Crawford v. Washington, 541 U.S. 36, 53-56 (2004). "Statements taken during a police interrogation are testimonial for purposes of the Confrontation Clause when 'there is no . . . ongoing emergency, and . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.'" State v. Damper, 223 Ariz. 572, ¶ 10 (App. 2010) (omissions in Damper) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
¶12 Nontestimonial statements, however, do not implicate the Confrontation Clause. See Michigan v. Bryant, 562 U.S. 344, 354 (2011). Statements to police are not testimonial when "the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Damper, 223 Ariz. 572, ¶ 10 (quoting Davis, 547 U.S. at 822). Accordingly, statements made "during a 911 call that describe 'current circumstances' requiring police assistance are nontestimonial when they are not 'designed primarily to "establis[h]" or "prov[e]" some past fact.'" Id. (alterations in Davis) (quoting Davis, 547 U.S. at 827); see State v. King, 212 Ariz. 372, ¶ 29 (App. 2006) (statements in 9-1-1 calls for primary purpose of preventing or stopping ongoing crimes generally nontestimonial). Whether a statement is testimonial "is a factually driven inquiry and must be determined on a case-by-case basis" by taking into account "the totality of the circumstances surrounding [the statement]." State v. Alvarez, 213 Ariz. 467, ¶ 14 (App. 2006) (alteration in Alvarez) (quoting State v. Parks, 211 Ariz. 19, ¶¶ 43, 52 (App. 2005), aff'd on remand, 213 Ariz. 412 (App. 2006)).
¶13 Echols argues the 9-1-1 caller's statements in this case were "purely testimonial" because "[t]here was no ongoing emergency." He asserts "the caller was not in immediate danger" and "was making the call for the sole purpose of reporting to the police perceived criminal activity." Further, Echols contends, the caller "expressly requested that she remain anonymous indicating that she was well aware that her call could be used in subsequent legal proceedings." We disagree.
¶14 Contrary to Echols's argument, the 9-1-1 caller's statements did not suggest that she intended or believed that they might later be used at trial. The caller stated at the beginning of the call that "just right now, . . . like five minutes ago," there had been a "fight right here with the neighbors and one of them has a gun," further explaining that the man with the gun had followed the maintenance man after retrieving the gun from his apartment. And the caller expressed that she had "got[ten] scared" because she did not know "what he's going to do with the gun." Although the caller was inside her apartment when she placed the 9-1-1 call and the operator assured her police were on their way, officers had not yet made contact with the man she had seen carrying a gun. These circumstances indicate that the primary purpose of the caller's statements was to "enable police assistance to meet an ongoing emergency" rather than to "'establis[h]' or 'prov[e]' some past fact." Damper, 223 Ariz. 572, ¶ 10 (alterations in Davis) (quoting Davis, 547 U.S. at 827). Thus, the trial court did not err in concluding the entire 9-1-1 call was nontestimonial. See Alvarez, 213 Ariz. 467, ¶ 14. Echols's rights under the Confrontation Clause were not violated. See Bryant, 562 U.S. at 354.
¶15 Additionally, Echols argues the trial court erred in admitting the 9-1-1 call as a present sense impression under Rule 803, Ariz. R. Evid., asserting the call had been "made after reflection and admitted concern over why a third party possessed a firearm." Specifically, Echols contends "the caller was not describing events as they happened and admitted that the fight between the parties occurred at least five minutes prior to the call." He points to testimony that he "left the scene of the initial fight and returned at least two separate times, suggesting that more than five minutes of time had elapsed since the time of the first initial encounter," as well as testimony he asserts is "inconsistent" with the caller's report. Echols further asserts the caller was no longer at the scene when she made the call, and her "entire conversation" with the 9-1-1 operator "was in the past tense."
¶16 The present sense impression exception to the hearsay rule allows admission of "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." Ariz. R. Evid. 803(1). Such statements are "deemed reliable because they are made close in time to the events they describe." State v. Tucker, 205 Ariz. 157, ¶ 42 (2003). "Rule 803(1) requires some degree of contemporaneity between the event and the statement," and "[t]he more time that elapses between the event and the statement, the stronger the possibility that a declarant will attempt, either consciously or subconsciously, to alter his or her description of the event." Id. ¶¶ 42, 45. The admissibility of statements under this rule "must be judged on the totality of the circumstances." Id. ¶ 45. "Trial courts have some latitude in finding whether a statement was made immediately after the event." Id. ¶ 46.
¶17 On the record before us, the trial court did not abuse its discretion in finding that the 9-1-1 caller had described events and conditions while she perceived them or immediately thereafter as necessary to qualify her statements as present sense impressions under Rule 803(1). See id. ¶ 46. As discussed, the caller stated the fight had occurred "just right now, it just happened like five minutes ago." And, although Echols suggests on appeal that the 9-1-1 call could have been placed more than five minutes after the initial altercation, it is not clear he raised this argument below, and the court noted both parties' agreement that the caller had made the statements "within 5 minutes . . . of perceiving the event." Moreover, after describing the initial altercation and the resident's retrieval of the gun from his apartment, the caller continued to observe and describe events as they were taking place, telling the operator the men were "in the alley now" and she had "just seen the black guy walk to the alley through the window." To the extent Echols asks us to reweigh the evidence or reassess witness credibility on appeal, we will not do so. See State v. Rodriguez, 205 Ariz. 392, ¶ 18 (App. 2003) (we defer to trial court's credibility determinations and will not reweigh evidence). Echols's arguments fail.
Disposition
¶18 For the foregoing reasons, we affirm Echols's conviction and sentence.