Opinion
No. 2 CA-CR 2017-0192
03-20-2018
THE STATE OF ARIZONA, Appellee, v. DANIEL FLOMER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Jason Lewis, Assistant Attorney General, Phoenix Counsel for Appellee Rosemary Gordon Pánuco, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201402247
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Jason Lewis, Assistant Attorney General, Phoenix
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Daniel Flomer appeals from his conviction for first-degree murder. He argues that that the trial court abused its discretion when it admitted text-message evidence that was inadmissible hearsay and that violated the Confrontation Clause of the Sixth Amendment. He also argues that the evidence was insufficient to support the jury's verdict because the victim's body could not be positively identified. We affirm.
Factual and Procedural Background
¶2 On September 4, 2014, D.H. reported his roommate, T.E., missing after not seeing her for several days. On September 13, 2014, D.H. and another man discovered T.E.'s decomposing body underneath her trailer and reported it to police. After an initial investigation, an Apache Junction Police Department detective tried to find Flomer. Police found Flomer at a friend's house and arrested him. Police took Flomer to a detention facility, where he was interviewed. In the interview, Flomer stated that he had begun to think about some kind of act of vengeance against T.E. while he was in prison, including within days of his release when he ultimately "knew it was gonna happen." Flomer admitted he "snapped" because "[T.E.] had [him] put in prison" and "next thing [he] knew [he] . . . just choked her out." Flomer also said he had put her body in the bedroom closet and, a couple of days later, he had returned, wrapped her body in blankets, and put her underneath the trailer. Also in 2014, Flomer told a friend that he had daily thoughts about killing the woman "who was the cause of his incarceration."
¶3 Flomer was convicted on the above charges and sentenced to natural life in prison. This appeal followed. We have jurisdiction under A.R.S. §§ 13-4031 and 13-4033.
Text Messages
¶4 In their investigation, police officers collected T.E.'s cellphone and retrieved text messages from it. At trial, the state sought to admit text messages between Flomer and T.E. from 2013, related to the crimes that had led to Flomer's imprisonment in 2014. Those messages had been shown to law enforcement by T.E. in 2013, days after they were sent, when police were investigating a domestic violence incident. Flomer objected, claiming that admission of T.E.'s 2013 text messages violated the Confrontation Clause of the Sixth Amendment and that they were inadmissible hearsay. The trial court overruled the objection, concluding that T.E.'s text messages did not violate the Confrontation Clause because they were not testimonial and that they were not hearsay because they provided context to Flomer's own statements, the admissibility of which was not contested. The court admitted the text messages and gave the standard other-acts limiting instruction.
¶5 A police officer testified as to the text messages, the content of which was:
T.E.: My jawline is all bruised.
T.E.: So is my left collarbone.
T.E.: Hello.
Flomer: I am sorry babe.
T.E.: Why no response?
Flomer: I am truly sorry.
Flomer: I am responding, I was outside.
T.E.: How do I explain it?
Flomer: Hello.
T.E.: How do I explain it?
Flomer: How bad is it . . . .
T.E.: Pretty bad.
Flomer: I am truly sorry . . . I only saw red . . . I never meant to hurt you like that.
Flomer: Do you have any foundation?
T.E.: Well it is bad. The foundation I have won't work.
Flomer: Why not?
Flomer: Where on the jawline is it?
T.E.: Not dark enough.
T.E.: Literally on my jawline.
Flomer: Shit.
Flomer: Babe, please know that I love you, I never meant to hurt you.
Flomer: Hello.
¶6 On appeal, Flomer argues that, because the text messages were given to law enforcement for the 2013 criminal case against him, they are testimonial and the trial court abused its discretion in admitting them. He also argues that, because they are hearsay, they are generally inadmissible and the court abused its discretion in admitting them. We review de novo a trial court's decision to admit evidence over a Confrontation Clause objection. State v. Damper, 223 Ariz. 572, ¶ 7 (App. 2010). "We review a trial court's ruling on the admissibility of evidence over hearsay objections for [an] abuse of discretion." State v. Chavez, 225 Ariz. 442, ¶ 5 (App. 2010).
¶7 "The Confrontation Clause prohibits the admission of testimonial hearsay unless (1) the declarant is unavailable and (2) the defendant 'had a prior opportunity to cross-examine' the declarant." Damper, 223 Ariz. 572, ¶ 9, quoting State v. Armstrong, 218 Ariz. 451, ¶ 32 (2008). "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations on hearsay evidence, is not subject to the Confrontation Clause." Id. ¶ 9, quoting Davis v. Washington, 547 U.S. 813, 821 (2006). Text messages are not by their nature testimonial, and "may be testimonial or non-testimonial, depending upon the circumstances and purpose" for which they are made. Id. ¶¶ 11-13 (when content and circumstances show message was not sent to establish or prove some fact, message is nontestimonial); see also State v. Forde, 233 Ariz. 543, ¶ 80 (2014) (message intending to alert to police activity rather than to establish or prove a fact is nontestimonial). The fact that a nontestimonial text message is ultimately used in a criminal prosecution does not make it testimonial. Id.
¶8 Statements given to the police are testimonial, and subject to the Confrontation Clause, when "the primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution." Damper, 223 Ariz. 572, ¶ 10, quoting Davis, 547 U.S. at 822. "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id., quoting Washington v. Crawford, 541 U.S. 36, 51 (2004). Statements that do not have the primary purpose to establish or prove past events potentially relevant to later criminal prosecution are "nontestimonial" and admitted nontestimonial statements do not violate the Confrontation Clause. See, e.g., State v. Hill, 236 Ariz. 162, ¶ 22 (App. 2014) ("If the primary purpose of the encounter is the provision and receipt of medical care, the statement is non-testimonial."); State v. Medina, 232 Ariz. 391, ¶¶ 61-62 (2013) (autopsy report created to determine manner and cause of death was nontestimonial); State v. Shivers, 230 Ariz. 91, ¶ 15 (App. 2012) (police officer's declaration of service was nontestimonial); State v. King, 212 Ariz. 372, ¶ 29 (App. 2006) ("9-1-1 calls that are primarily 'loud cries for help' are nontestimonial."); State v. Aguilar, 210 Ariz. 51, ¶ 13 (App. 2005) (excited utterance was nontestimonial).
¶9 The trial court properly determined that the text messages from T.E. to Flomer were not made with the primary purpose of establishing or proving some fact for a later prosecution; they were made several days before police began their investigation of the 2013 domestic violence incident, months before police began their investigation into T.E.'s death, and were reasonably interpretable as meant to be simply between the parties to the 2013 incident. Because the content and the circumstances of the texts at issue demonstrate that T.E. did not send the messages for the purpose of proving some fact, the text messages are nontestimonial. As such, the admission of the text messages did not violate the Confrontation Clause.
On appeal, Flomer makes no argument that T.E. had conducted the text exchange with the intention of collecting evidence against him that she could later provide to police.
¶10 Flomer also argues that the text messages from T.E. were offered to prove the matter asserted, namely that he had assaulted T.E. in 2013, and therefore they are inadmissible hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Ariz. R. Evid. 801(c). Hearsay is inadmissible unless an exception applies. Ariz. R. Evid. 802, 803, 804. However, statements not offered to prove the truth of the matter they assert are not hearsay. Chavez, 225 Ariz. 442, ¶ 9 (text messages between defendant and nonparty were not hearsay because they were offered to show defendant's belief); see also State v. Weigel, 145 Ariz. 480, 481 (1985) (officer's statements not hearsay where they gave meaning to defendant's statement).
¶11 Here, the text messages were offered not to prove the truth of the matter asserted by T.E., but to provide context to Flomer's own text messages, which would have been meaningless without them and which were themselves admitted without objection. Cf. Weigel, 145 Ariz. at 481. A statement that would otherwise be hearsay is non-hearsay and admissible when it is a statement by a party and is offered by a party opponent. Ariz. R. Evid. 801(d)(2)(a); State v. Spoon, 137 Ariz. 105, 111 (1983). In his own statements, Flomer apologizes for hurting T.E., asks how bad her injuries were, mentions her jawline, and suggests a means to hide her injuries with make-up. T.E.'s statements provide the context to give Flomer's text messages meaning. In Weigel, a law enforcement officer speaking to the defendant, then a suspect, said, "[W]e have you solid. We know you attempted to burglarize the house and did burglarize the business. We have witnesses who saw you do both. I have a solid case against you." 145 Ariz. at 181. The defendant responded, "Yes, I know." Id. The officer's statements were "admitted not to prove the truth of what it assert[ed] but to give meaning to defendant's agreement." Id.
¶12 T.E.'s statements, as those of the officer in Weigel, give meaning to Flomer's own admissions, and they were therefore non-hearsay and admissible for that purpose. As such, we find no error in the trial court's admission of T.E.'s text messages.
Victim Identification
¶13 Flomer argues that the evidence was insufficient to support the jury's verdict because the body found underneath T.E.'s trailer was never identified as T.E. We review a sufficiency of the evidence claim de novo because it is a question of law. State v. West, 226 Ariz. 559, ¶ 15 (2011). The evidence at trial is reviewed only to determine if substantial evidence exists to support the jury verdict. State v. Hausner, 230 Ariz. 60, ¶ 50 (2012). "Substantial evidence is 'evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.'" State v. Fimbres, 222 Ariz. 293, ¶ 4 (App. 2009), quoting State v. Stroud, 209 Ariz. 410, ¶ 6 (2005). We will not reverse a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." West, 226 Ariz. 559, ¶ 16.
¶14 Here, there is substantial evidence that establishes that the body was T.E.'s. Flomer admitted to strangling T.E. and then placing her body beneath the trailer, where this body was found. Photographs from T.E. before her murder and of the body show the same tattoo on her chest. A crime scene investigator testified that she recognized the chest tattoo on the body as belonging to T.E. Fingerprints were collected from the body and compared to and matched those from taken T.E. before she died. The medical examiner identified the body as T.E. because of the matching tattoos and fingerprints. Because sufficient evidence supports the finding that the body found underneath the trailer was T.E., we find no error.
Disposition
¶15 For the above reasons, Flomer's conviction and sentence are affirmed.