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State v. Montoya10/2/2003
immediately after the event." Id. at . "The admissibility of such statements must be judged on the totality of the circumstances." Id. at .
C. called 911 immediately after the accident and spoke to an officer at the scene approximately ten minutes later. The officer testified that C. appeared coherent and calm when describing the accident and events thereafter, and her description is consistent with the physical evidence and the officers' observations. Under the totality of the circumstances, the short lapse of time between the event and C.'s statement does not defeat its admissibility as a present sense impression. See Ariz. R. Evid. 803(1); Tucker. Thus, the trial court did not abuse its discretion in admitting the witness's statement as a present sense impression. And, because we determine that the trial court properly admitted the evidence under the present sense impression exception, we need not consider whether the evidence was properly admitted under the residual exception.
Montoya next argues that the trial court denied him his rights under the Confrontation Clause by admitting the hearsay. See U.S. Const. amend. VI; Ariz. Const. art. II, § 24. Assertions of Confrontation Clause violations are reviewed de novo. State v. Bronson, 204 Ariz. 321, , 63 P.3d 1058, (App. 2003). A hearsay statement may be admitted without violating the Confrontation Clause if the declarant is unavailable and the statement bears sufficient "indicia of reliability." Wooten, 193 Ariz. 357, , 972 P.2d 993, . "If the statement falls within a 'firmly-rooted' exception to the hearsay rule, reliability may be inferred and no further showing of reliability need be made." Id. The present sense impression exception is a firmly rooted exception to the hearsay rule. Id. at ; Ariz. R. Evid. 803(1). Accordingly, admission of C.'s statement did not violate the Confrontation Clause.
Montoya lastly argues the trial court was biased against him, as shown by the court's prejudicial comments. The state claims Montoya waived this argument by failing to object below or to move for a new trial on this basis. See State v. Curry, 187 Ariz. 623, 631, 931 P.2d 1133, 1141 (App. 1996). Nevertheless, we review a claim of judicial bias for fundamental error. Id.; see also State v. Valencia, 124 Ariz. 139, 141, 602 P.2d 807, 809 (1979). "Fundamental error goes to the very foundation of the case and takes from the defendant a right essential to her defense is error of such magnitude that the defendant cannot possibly have received a fair trial." State v. Ebert, 192 Ariz. 286, , 964 P.2d 487, (App. 1998).
Montoya contends the trial court improperly made a joke at defense counsel's expense by asking, "Do you?" after counsel had asked a witness whether Montoya knew "the difference between a personal pronoun and a noun." Montoya points out that the court reporter noted laughter following this comment. Montoya also claims the trial court erred by twice interjecting an explanation of a witness's testimony, which the court apparently believed defense counsel had misunderstood. Citing Article VI, § 27 of the Arizona Constitution, Montoya argues the court's explanations amounted to an unconstitutional comment on the evidence. Article VI, § 27 of the Arizona Constitution "'does not forbid a trial court from making reference to the evidence, but it does forbid comment. The word comment as used in the constitutional provision has been construed to mean the expression of opinion.'" State v. Summerlin, 138 Ariz. 426, 433, 675 P.2d 686, 693 (1983), quoting State v. Barnett, 111 Ariz. 391, 393, 531 P.2d 148, 150 (1975).
Although the court's comments were improper, they do not amount to fundamental
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