State v. Montoya10/2/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
After a jury trial, appellant Ernest Montoya was convicted of aggravated driving under the influence of intoxicants and aggravated driving with a blood alcohol concentration (BAC) of.10 or more. The trial court sentenced him to concurrent, aggravated prison terms of six years on each count. On appeal, Montoya argues the trial court erred by admitting hearsay evidence and by improperly displaying bias and prejudice against him. Finding no reversible error, we affirm.
"We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the verdict." State v. Taylor, 196 Ariz. 584, , 2 P.3d 674, (App. 1999). Montoya was involved in a one-car traffic accident. Two police officers arrived at the scene and found Montoya standing near the open driver's side door of the truck. The keys were in the ignition and the truck was running. The truck was apparently stuck on a road sign, and there were ruts under the tires showing that someone had attempted to drive the truck off the sign. Montoya was alone and told the officers that another vehicle had forced him off the road. He appeared to be intoxicated and performed poorly on several field sobriety tests. The officers arrested Montoya and a subsequent blood test revealed he had a BAC of.315.
At the scene of the accident, one of the officers spoke to a witness, C., who had called the police to report the accident. C. stated that she had heard a "commotion" and had seen the truck "hung up" on a sign across from her house. She said that she had seen and heard Montoya "revving" the truck's engine, apparently trying to get unstuck. She then said that, after calling the police, she had seen Montoya get out of the truck and stand next to it.
Because C. was not available for Montoya's trial, the state moved to have the statements she gave to the officer admitted pursuant to several hearsay exceptions. After an evidentiary hearing, at which both police officers testified, the trial court found C.'s statements admissible under the residual hearsay exception, Rule 804(b)(5), Ariz. R. Evid., 17A A.R.S., and as a present sense impression. Ariz. R. Evid. 803(1), 17A A.R.S. At trial, Montoya admitted he was drunk at the time of the accident, but testified that he had not been the driver. He claimed that a friend, an illegal immigrant, had been driving the truck but had run away after the accident.
Montoya first argues the trial court erred by admitting C.'s statements identifying Montoya as the driver at trial. The trial court found that C.'s statements were admissible under the present sense impression and residual exceptions to the hearsay rule. See Ariz. R. Evid. 803(1), 804(b)(5). We review a trial court's admission of hearsay evidence for an abuse of discretion. State v. Wooten, 193 Ariz. 357, , 972 P.2d 993, (App. 1998).
Hearsay is inadmissible at trial unless it falls within certain exceptions. Ariz. R. Evid. 802, 17A A.R.S. Present sense impression is one such exception, Rule 803(1), Ariz. R. Evid., and has three requirements: " he statement must describe an event or condition, that was perceived by the declarant, and the statement must be made immediately after the event." State v. Tucker, ___ Ariz. ___, , 68 P.3d 110, (2003); see also State v. Sucharew, 205 Ariz. 16, , 66 P.3d 59, (App. 2003). Here, Montoya challenges the third requirement: immediacy. "Rule 803(1) requires some degree of contemporaneity between the event and the statement," Tucker, ___ Ariz. ___, , 68 P.3d 110, , but " rial courts have some latitude in finding whether a statement was made
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