State v. Fordson

555 P.3d 52

STATE of Arizona, Appellee,

v.Devin FORDSON, Appellant.

No. 1 CA-CR 23-0491

Court of Appeals of Arizona, Division 1.

Filed August 1, 2024

Appeal from the Superior Court in Navajo County, No. S0900CR202000911, The Honorable Joseph S. Clark, Judge. AFFIRMED

Arizona Attorney General’s Office, Phoenix, By Celeste Kinney, Counsel for Appellee

The Rigg Law Firm, P.L.L.C., Pinetop, By Brett R. Rigg, Counsel for Appellant

Judge Paul J. McMurdie delivered the Court’s opinion, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

OPINION

McMURDIE, Judge:

[1] ¶1 Defendant Devin Fordson appeals his conviction and sentence for transportation of a dangerous drug for sale. We hold that a defendant must assert his or her Confrontation Clause rights to preserve the issue for anything but fundamental error review on appeal. Here, we only review for fundamental error because Fordson waived his Confrontation Clause rights at the trial by failing to object to the substitute expert. We affirm the conviction because there was no fundamental error.

FACTS¹ AND PROCEDURAL BACKGROUND

¶2 In December 2020, a state trooper saw a traffic violation on Interstate 40 near Winslow and performed a traffic stop. Amanda Stallings drove the car while Fordson slept in the front passenger’s seat.

¶3 The trooper spoke with Stallings and saw that she exhibited unusual symptoms consistent with anxiety. The trooper reviewed the car’s rental agreement paperwork and found that the rental timeline contradicted Stallings’s travel plans. The trooper testified that in his experience, he had "seen a very large amount of smugglers utilize rental cars," and he would become suspicious if he saw "inconsistencies along with the rental timelines that do not match the rental agreement." Based on the inconsistencies, the trooper grew suspicious and asked Stallings if he could search the car. Stallings consented to the search.

¶4 The trooper asked Stallings about Fordson, and Stallings stated that they had been dating for two weeks. Stallings called Fordson by a nickname and claimed she did not know his last name. This caused the trooper more suspicion because he thought Stallings was lying about their relationship. The trooper woke up Fordson and told him to exit the car.

¶5 During the car search, the trooper found a deflated spare tire and felt "anomalies within the tire." The trooper detained Fordson in his patrol car. In the trooper’s car, Fordson was recorded saying:

I knew it. I fucking knew it. I should, boy should’ve, would’ve, could’ve ain’t goodenough … boy I’m fucked up now … fucking this girl got us pulled the fuck over. I should’ve been woke and keeping this girl on point but it’s too late now boy I’m fucking going to jail for a long ass time. Boy I am fucked.

¶6 Once the trooper placed Stallings in the car, Fordson and Stallings spoke:

Fordson: We’ve been ratted out, man.

Stallings: And like he was sitting there, he was sitting there when I passed him. And then he like waited before he pulled out.

Fordson: But did you look at him when he was passing?

Stallings: No, I didn’t look at him at all. Should I have?

Fordson: Don’t ever look at them.

* * *

Fordson: I’m telling y’all, I already know. That’s why I always tell y’all when you coming through here you’ve got to be on your shit.

Stallings: We’ve been dating for a couple weeks.

Fordson: Yeah.

The trooper believed Stallings and Fordson’s conversation showed they tried to get their stories straight.

¶7 The trooper and another officer opened the spare tire and found packages of a white crystalline substance inside it. The trooper arrested Stallings and Fordson and seized and secured the packages.

¶8 The trooper obtained a sample from one of the packages for testing and sent the sample and the packages to the crime lab. The testing revealed that the sample was methamphetamine. Together, the packages weighed 1.56 pounds. The crime lab identified thirteen fingerprints as Fordson’s on a package’s plastic wrap. The State charged Fordson with transportation of a dangerous drug for sale, a Class 2 felony. See A.R.S. § 13-3407(A)(7), (B)(7).

¶9 Joseph Blakesley, who tested the sample to determine its chemical makeup, no longer worked for the Department of Public Safety. So the State called another lab employee, Jason O’Donnell, to testify at Fordson’s trial. When alerted that Blakesley would not testify, Fordson had "some concern" under Arizona Rule of Evidence ("Rule") 703 because O’Donnell did not personally observe the drug testing and questioned whether O’Donnell had sufficient training to review the analysis. See Ariz. R. Evid. 702, 703. The court allowed Fordson to question O’Donnell on voir dire outside the jurors’ presence to verify his qualifications. The court was satisfied that O’Donnell had the requisite qualifications, and Fordson did not object to O’Donnell’s qualifications or testimony after the voir dire.

¶10 O’Donnell testified about his experience in controlled substance testing and explained the crime lab’s chain of custody procedures. O’Donnell then testified that he reviewed Blakesley’s notes. Other than a later-corrected item number, O’Donnell said nothing in the notes looked abnormal, and it was his opinion that "[b]ased on everything [he] saw," the tested sample was methamphetamine. Fordson did not object on any basis to O’Donnell’s conclusions or the admission of the methamphetamine packages.

¶11 The jury found Fordson guilty. During the aggravating circumstances trial phase, the State urged the jury to find the presence of an accomplice as an aggravating factor partly because Stallings told the trooper she had been dating Fordson for two weeks, and she told Fordson the same thing in the patrol car. The State claimed, "She clearly was an accomplice. She was trying to help him … accomplish this task."

¶12 The jury found the State proved two aggravating circumstances: 1) the presence of an accomplice and 2) the commission of the offense in expectation of pecuniary gain. The court found additional aggravation and found that the aggravation outweighed the mitigation evidence. See A.R.S. § 13-701(F). The court sentenced Fordson to 21 years, a slightly aggravated term for a category three repetitive offender. See A.R.S. § 13-703(0, (J).

¶13 Fordson appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

A. The Superior Court Did Not Fundamentally Err by Admitting the Expert Testimony.

[2, 3] ¶14 Fordson argues that allowing O’Donnell, a substitute expert, to testify about the drug test results violated the Confrontation Clause. The Sixth Amendment’s Confrontation Clause "prohibits the introduction of testimonial statements by a nontestifying witness" unless the defendant had a prior opportunity to cross-examine the now- unavailable witness. Ohio v. Clark, 576 U.S. 237, 243, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015); see also Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) ("[T]he Sixth Amendment’s right of an accused to confront the witnesses against him is … a fundamental right and is made obligatory on the States by the Fourteenth Amendment."). The Confrontation Clause "applies only to testimonial hearsay." Davis v. Washington, 547 U.S. 813, 823-24, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

[4–6] ¶15 "Testimony" is "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Testimonial evidence includes "ex parte in-court testimony or its functional equivalent … such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross- examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. It also includes formal statements to government officers and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52, 124 S.Ct. 1354. "A document created solely for an ‘evidentiary purpose,’ … made in aid of a police investigation, ranks as testimonial." Bullcoming v. New Mexico, 564 U.S. 647, 664, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)).

[7] ¶16 Hearsay is an out-of-court statement "a party offers in evidence to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c). "When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth." Smith v. Arizona, — U.S. —, 144 S. Ct. 1785, 1791, 219 L.Ed.2d 420 (2024).

¶17 Fordson states that the issue here is "nearly identical" to the issue in Smith, which caused the Court to remand the case to determine whether the evidence was testimonial and thus subject to the Confrontation Clause. See Smith, 144 S. Ct. at 1801-02. In Smith, law enforcement officers found the defendant with what appeared to be drugs. Id. at 1795. The analyst who tested the substances did not testify at the trial. Id. Instead, a substitute expert reviewed the lab report and the analyst’s notes, referred to the materials at trial, conveyed what the documents said, and offered his opinion on the chemical nature of the substances. Id. at 1795-96. The Supreme Court held that the analyst’s statements were admitted for their truth. Id. at 1799-1800.

¶18 But as the State points out, the cases’ procedural histories differ. In Smith, the defendant objected on Confrontation Clause grounds at trial. But Fordson did not object to the expert testimony under the Arizona Rules of Evidence or the Confrontation Clause. And even assuming Fordson’s pre- voir dire concerns preserved a Rule 703 objection, such an objection did not preserve a...