1 CA-CR 07-0177-91122

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the admissibility of evidence for an abuse of discretion. State v. King, 213 Ariz. 632, 636, 15, 146 P.3d 1274, 1278 (App. 2006). However, we review whether testimony violates the Confrontation Clause de novo. Id. 31 The Confrontation Clause of the Sixth Amendment prohibits the use of testimonial out-of-court statements where a witness is absent or unavailable and there has not been a prior opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 68 (2004). The State argues that because the challenged testimony was not offered to prove the truth of the information Detective Valadez learned from others during his investigation, the out-of-court statements did not constitute hearsay and therefore did not violate the Confrontation Clause. The State argues that these portions of the detective’s testimony were merely provided as background information to show the jury why the police ultimately focused on the McDowell warehouse. 32 Generally, testimony that is not admitted for the truth of the matter asserted is not hearsay and does not violate the Confrontation Clause. State v. Tucker, 215 Ariz. 298, 315, 61, 160 P.3d 177, 194 (20<strong>07</strong>). It is recognized that in certain situations the State will need to provide information to the jury as to why the police are present at a particular place. 16
See United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (“If a jury would not otherwise understand why an investigation targeted a particular defendant, the testimony could dispel an accusation that the officers were officious intermeddlers staking out [the defendant] for nefarious purposes.”). This should not be viewed, however, as providing an open invitation to evade Crawford and the normal restrictions on hearsay. As one of the standard evidentiary treatises explains: One area where abuse may be a particular problem involves statements by arresting or investigating officers regarding the reason for their presence at the scene of a crime. The officers should not be put in the misleading position of appearing to have happened upon the scene and therefore should be entitled to provide some explanation for their presence and conduct. They should not, however, be allowed to relate historical aspects of the case, such as complaints and reports of others containing inadmissible hearsay. Such statements are sometimes erroneously admitted under the argument that the officers are entitled to give the information upon which they acted. The need for this evidence is slight, and the likelihood of misuse great. Instead, a statement that an officer acted “upon information received,” or words to that effect, should be sufficient. 2 Broun, et al., McCormick on Evidence § 249, at 103 (5th ed. 1999). 33 The requisite factor for admissibility of out-of-court statements for non-hearsay purposes is relevancy. State v. 17
Page 1 and 2: NOTICE: THIS DECISION DOES NOT CREA
Page 3 and 4: Gonzales inside while Tovar took fo
Page 5 and 6: information. He asserts that when t
Page 7 and 8: March 18, 2005, and April 15, 2005,
Page 9 and 10: on the determination of probable ca
Page 11 and 12: Thus, notwithstanding the admitted
Page 13 and 14: direct use of information obtained
Page 15: Ariz. 296, 77 P.3d 1246 (2003); Sta
Page 19 and 20: Id. at 118; see also Silva, 380 F.3
Page 21 and 22: direct evidence of Defendant’s pa

1 CA-CR 07-0177-91122

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