                                                                FILED BY CLERK
                                                                    JAN 31 2007
                          IN THE COURT OF APPEALS                   COURT OF APPEALS
                              STATE OF ARIZONA                        DIVISION TWO
                                DIVISION TWO


THE STATE OF ARIZONA,                       )
                                            )       2 CA-CR 2006-0024
                                Appellee,   )       DEPARTMENT A
                                            )
                  v.                        )       OPINION
                                            )
RAFAEL REAL,                                )
                                            )
                             Appellant.     )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20043794

                        Honorable Howard Hantman, Judge

                                     AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Joseph T. Maziarz                                 Phoenix
                                                           Attorneys for Appellee

Robert J. Hooker, Pima County Public Defender
 By John F. Palumbo                                                        Tucson
                                                           Attorneys for Appellant


H O W A R D, Presiding Judge.
¶1            After a jury trial, appellant Rafael Real was convicted of four violations of

A.R.S. § 28-1383, aggravated driving under the influence of an intoxicant (DUI). The trial

court sentenced him to concurrent, presumptive terms of 2.5 years in prison for each

conviction. On appeal, Real argues the trial court violated his Sixth Amendment right to

confrontation. Finding no error, we affirm.

¶2            We view the evidence in the light most favorable to sustaining the convictions.

See State v. Newnom, 208 Ariz. 507, ¶ 2, 95 P.3d 950, 950 (App. 2004). In November

2003, Pima County Sheriff’s Deputy Martinez stopped a vehicle driven by Real for speeding.

Real admitted not having a valid driver’s license and exhibited symptoms of intoxication.

Deputy Phaneuf, who had responded to Martinez’s request for a DUI expert, administered

field sobriety tests, which Real had trouble performing.       Phaneuf then arrested and

questioned Real, who made inculpatory statements. A blood test performed by a third

deputy, Copfer, showed Real’s alcohol concentration (AC) was .190 approximately one-half

hour after the stop.

¶3            Before trial, Real sought to preclude Phaneuf from testifying, in part on Sixth

Amendment grounds, because Phaneuf had no memory of investigating or arresting Real.

The trial court ruled Phaneuf could testify. At trial, Phaneuf testified that he had no

independent recollection of investigating and arresting Real and then read from his police

report in response to questioning.




                                              2
¶4            Real argues the trial court violated the Sixth Amendment’s Confrontation

Clause, as interpreted in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), by

permitting Phaneuf to read from his police report at trial when Phaneuf testified he had no

memory of the events surrounding Real’s arrest.1 Although we review the trial court’s

decision to admit evidence for an abuse of discretion, see State v. Hampton, 213 Ariz. 167,

¶ 45, 140 P.3d 950, 961 (2006), we review its decision on the Confrontation Clause de

novo, see State v. Ruggiero, 211 Ariz. 262, ¶ 15, 120 P.3d 690, 693 (App. 2005).

¶5            The Sixth Amendment to the United States Constitution protects a defendant’s

“right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. In

Crawford, the Supreme Court held that the Confrontation Clause prohibits the use of

testimonial out-of-court statements if the declarant does not testify at trial, unless the

declarant is unavailable and the defendant had a prior opportunity to cross-examine the

declarant. 541 U.S. at 68, 124 S. Ct. at 1374. But the Court stated in dicta that, where the

declarant is subject to cross-examination at trial, “the Confrontation Clause places no

constraints at all on the use of his prior testimonial statements.”2 Id. at 59 n.9, 124 S. Ct.



       1
        Real does not contest the admissibility of Phaneuf’s testimony under the recorded
recollection hearsay exception. See Ariz. R. Evid. 803(5), 17A A.R.S.; Goy v. Jones, 205
Ariz. 421, ¶¶ 10-12, 72 P.3d 351, 353-54 (App. 2003) (police officer may read from police
report at trial if foundational requirements for recorded recollection are satisfied).
       2
        The state does not contest Real’s assertion that Phaneuf’s statements were
“testimonial.” See Crawford, 541 U.S. at 68, 124 S. Ct. at 1374 (Confrontation Clause
protection applies to testimonial evidence).

                                              3
at 1369 n.9; see also State v. Roque, 213 Ariz. 193, ¶ 115, 141 P.3d 368, 396-97 (2006)

(where “victims made their statements in court and stood subject to cross-examination, no

confrontation issues arose”).

¶6            That comment by the Supreme Court, although dicta, is consistent with its

prior decisions. In United States v. Owens, 484 U.S. 554, 108 S. Ct. 838 (1988), the Court

addressed the issue of whether a witness’s lack of memory regarding the basis of a prior

statement posed a Confrontation Clause problem when the witness testified at trial and was

subject to cross-examination. See id. at 555-56, 108 S. Ct. at 840. The declarant in Owens

was a corrections officer who experienced memory loss as a result of an attack by the

defendant. Id. at 556, 108 S. Ct. at 840-41. At trial, the officer stated he could not

remember seeing the defendant attack him, but testified that he could remember identifying

the defendant in an interview after the attack. Id. The officer also had difficulty

remembering his hospitalization after the attack. Id. The Court held that there was no

Confrontation Clause violation because the defendant had the opportunity to, and did,

cross-examine the officer. Id. at 559-60, 108 S. Ct. at 842-43; see also Delaware v.

Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295 (1985) (“Confrontation Clause is generally

satisfied” by opportunity to cross-examine).

¶7            Here, similarly, Phaneuf testified that he did not remember the events

surrounding Real’s arrest. He stated that he had prepared a “worksheet” in the minutes

following the incident and that a transcribed report was prepared within a few hours. He


                                               4
then read from the report in response to questioning. Real cross-examined Phaneuf, availing

himself of the tools of cross-examination discussed in Owens. See Owens, 484 U.S. at 559,

108 S. Ct. at 842 (“It is sufficient that the defendant has the opportunity to bring out such

matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even

. . . the very fact that he has a bad memory.”). Under Owens, this procedure presents no

Confrontation Clause problem.

¶8            Real nonetheless argues that “it is unclear from Crawford whether the

[Supreme] Court intended to leave in place all of its prior case law concerning unavailability

under the Confrontation Clause.” He emphasizes the Court’s statement in Crawford that

“[t]he [Confrontation] Clause does not bar admission of a statement so long as the declarant

is present at trial to defend or explain it,” 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9

(emphasis added), and contends that a declarant who lacks memory of prior events cannot

“defend or explain” his statement. But the Court in Crawford did not expressly overrule

Owens or other cases suggesting that there is no Confrontation Clause violation when the

court admits prior statements the witness does not remember making, if the witness testifies.

See, e.g., California v. Green, 399 U.S. 149, 161, 90 S. Ct. 1930, 1936 (1970) (“none of

our decisions interpreting the Confrontation Clause requires excluding the out-of-court

statements of a witness who is available and testifying at trial”); Fensterer, 474 U.S. at 21-

22, 106 S. Ct. at 295 (no Confrontation Clause violation where expert testified to opinion

but could not recall basis of the opinion). In fact, the Crawford Court cited Green in dicta,


                                              5
and “reiterate[d] that, when the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of his prior testimonial

statements.” Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9.

¶9            “We cannot ignore a Supreme Court decision interpreting federal law unless

the Court expressly overrules or casts cognizable doubt on that decision.” State v. Ring,

204 Ariz. 534, ¶ 61, 65 P.3d 915, 938 (2003). And, as Real concedes, courts in other

jurisdictions that have addressed the issue have concluded Crawford did not affect the

continuing validity of Owens. See, e.g., People v. Sharp, 825 N.E.2d 706, 711 (Ill. App.

2005) (Supreme Court in Crawford “neither overruled nor called into question” Fensterer

or Owens); State v. Pierre, 890 A.2d 474, 500 (Conn.), cert. denied, ___ U.S. ___, 126 S.

Ct. 2873 (2006) (same); see also State v. Tate, 682 N.W.2d 169, 176 n.1 (Minn. App.

2004) (where declarant subject to cross-examination at trial, Crawford does not apply);

State v. Carothers, 692 N.W.2d 544, 549 (S.D. 2005) (same). Accordingly, we reject

Real’s assertion that, by stating in a footnote that a declarant must be able to “defend or

explain” his prior statement, the Crawford Court intended to overrule or cast doubt on

Owens.3

¶10           Real next contends this case is factually distinguishable from Owens because

in Owens the witness lacked memory only as to the prior identification, whereas here,

Phaneuf testified to a complete lack of memory of the events surrounding Real’s arrest. But


       3
       Justice Scalia wrote for the Court in both Owens and Crawford.

                                            6
the Supreme Court did not suggest in Owens that the declarant’s retention of some memory

of the attack was crucial. Instead, it explained that the opportunity for cross-examination

is all the Confrontation Clause protects. Owens, 484 U.S. at 559, 108 S. Ct. at 842; see

also State v. Carreon, 210 Ariz. 54, ¶ 36, 107 P.3d 900, 909 (2005), cert. denied, ___ U.S.

___, 126 S. Ct. 122 (2005) (“[T]he ‘main and essential purpose of confrontation is to secure

for the opponent the opportunity of cross-examination.’”), quoting Davis v. Alaska, 415

U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974). The Confrontation Clause does not

guarantee that the resulting cross-examination will be effective. Owens, 484 U.S. at 559,

108 S. Ct. at 842. Here, Real had the opportunity to cross-examine Phaneuf, and he did so.

Thus, the trial court afforded him the only right the Confrontation Clause provides.

¶11           Real further contends Phaneuf was “unavailable” as a witness under Crawford,

citing Rule 804(a)(3), Ariz. R. Evid., 17A A.R.S. (a declarant who “testifies to a lack of

memory of the subject matter of the declarant’s statement” is “unavailable as a witness”).

But the Supreme Court has separated the states’ hearsay rules and analysis from the

constitutional Confrontation Clause analysis. See Crawford, 541 U.S. at 68, 124 S. Ct. at

1374. And even if Phaneuf was unavailable as a witness under Rule 804(a)(3), an issue Real

did not raise below or here, he testified at trial and was subject to cross-examination. See

id. at 59 n.9, 124 S. Ct. at 1369 n.9 (no Confrontation Clause problem “when the declarant

appears for cross-examination at trial”). If Real were correct that the evidentiary definition

of unavailability also governed the determination of whether a witness appeared for cross-


                                              7
examination, surely there would have been a Confrontation Clause problem in Owens,

where the declarant testified to a lack of memory. Owens, 484 U.S. at 556, 108 S. Ct. at

841; Fed. R. Evid. 804(a)(3) (declarant who testifies to lack of memory unavailable).

Consequently, Phaneuf’s unavailability as defined by the rules of evidence is irrelevant.

¶12           Real cites State v. Williams, 889 So. 2d 1093 (La. App. 2004), in support of

his position that Phaneuf was unavailable for cross-examination under Crawford. But in

Williams, the codefendant/witness testified at trial, although steadfastly refusing to answer

any questions regarding his prior statement implicating Williams. Id. at 1099-1100. In fact,

he denied making any statement. Id. at 1101. The court determined the admission of the

prior statement violated Crawford. Id. at 1102. Here, in contrast, Phaneuf testified and was

subject to unrestricted cross-examination but could not remember the events independently.

Therefore, the case is distinguishable from Williams and we need not determine whether we

would agree with the Williams court if the same situation were presented.4

¶13           Finally, Real contends that permitting officers to read from their police reports

when they do not recall the events surrounding preparation of the report will encourage

police officers to testify to a lack of memory and “will lead to prosecution by police report,

which is precisely what Crawford and the Confrontation Clause are intended to prevent.”



       4
        Real also cites United States v. Gardinier, 63 M.J. 531 (A. Ct. Crim. App. 2006),
in support of his argument. But that case involved the admission of videotaped testimony
of a child victim who did not appear at trial, id. at 536-37, and accordingly does not help
Real.

                                              8
We disagree. As Crawford ’s extensive historical analysis makes clear, the protection the

Confrontation Clause provides is the opportunity to cross-examine the declarant. See

Crawford, 541 U.S. at 42-50, 124 S. Ct. at 1359-63. Real had that opportunity here.

Furthermore, we perceive little advantage to a police officer falsely claiming that he has no

recollection of the events surrounding an arrest, rather than simply refreshing his

recollection from his report. Accordingly, we reject Real’s public policy argument.

¶14           For the foregoing reasons, Real’s convictions and sentences are affirmed.



                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge



CONCURRING:


____________________________________
JOHN PELANDER, Chief Judge



____________________________________
GARYE L. VÁSQUEZ, Judge




                                             9
