State v. Prasertphong

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0100-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-64663
KAJORNSAK PRASERTPHONG, )
)
Appellant. ) OPINION
)
__________________________________)

Appeal from the Superior Court in Pima County
No. CR-64663
The Honorable Michael Brown, Judge (Retired)

AFFIRMED

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section,
Vincent L. Rabago, Assistant Attorney General Tucson
Attorneys for State of Arizona

ROBERT J. HOOKER, PIMA COUNTY PUBLIC DEFENDER Tucson
By Rebecca A. McLean, Assistant Public Defender,
Lori J. Lefferts, Assistant Public Defender,
Attorneys for Kajornsak Prasertphong
________________________________________________________________

R Y A N, Justice

¶1 In September 2000, a jury convicted Kajornsak

Prasertphong of three counts of first degree felony murder and

three counts of armed robbery. The trial judge sentenced him to
death for two of the murders, to prison for natural life for one

of the murders, and to three concurrent twenty-one-year

sentences for the robbery convictions. We previously affirmed

all of the convictions and sentences, see State v. Prasertphong,

206 Ariz. 70, 93, ¶ 98, 75 P.3d 675, 698 (2003) (Prasertphong

I), except for the death sentences, which we remanded for re-

sentencing in light of Ring v. Arizona, 536 U.S. 584, 609

(2002).1

¶2 Prasertphong filed a Petition for Writ of Certiorari

in the United States Supreme Court, arguing that the trial court

and this Court erred in applying Ohio v. Roberts, 448 U.S. 56

(1980), in concluding that the admission of a portion of

Prasertphong’s unavailable co-defendant’s statement did not

violate Prasertphong’s right to confront witnesses under the

Sixth Amendment. While his petition was pending, the United

States Supreme Court decided Crawford v. Washington, 541 U.S. 36

(2004), which overruled Roberts and applied a new standard for

the admissibility of statements under the Confrontation Clause.

Prasertphong supplemented his Petition for Writ of Certiorari,

citing Crawford.

¶3 Shortly thereafter, the Supreme Court vacated

Prasertphong I, ordering us, on remand, to determine whether, in

1
State v. Prasertphong, 206 Ariz. 167, 169, 172, ¶¶ 2, 23-
24, 76 P.3d 438, 440, 443 (2003) (Prasertphong II).

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light of Crawford, the admission of the unavailable co-

defendant’s statements to the police violated the Confrontation

Clause. Prasertphong v. Arizona, 541 U.S. 1039 (2004). We

conclude that the trial judge and this Court did not apply the

correct legal standard regarding the Confrontation Clause as set

forth in the subsequently decided Crawford decision. We hold,

however, that that error did not violate Prasertphong’s

Confrontation Clause rights. We have jurisdiction under Article

6, Section 5(3), of the Arizona Constitution.

I

¶4 A detailed account of the facts is set out in

Prasertphong I, 206 Ariz. at 76-78, ¶¶ 2-15, 75 P.3d at 681-83.

For purposes of this opinion, however, the essential facts

establish that Prasertphong and Christopher Huerstel, after

having talked about robbing a Pizza Hut earlier in the night,

went to a Pizza Hut in Tucson, where they murdered three

employees and took a bank bag and debit card machine. Both were

arrested the next day, and both gave tape-recorded statements to

the police. Both statements contained portions that inculpated

each defendant and other portions that exculpated the other.

¶5 The Pima County Grand Jury indicted Prasertphong and

Huerstel in the same indictment. Because each defendant’s

confession implicated the other defendant, the trial court,

based on Bruton v. United States, 391 U.S. 123 (1968), severed

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Prasertphong’s and Huerstel’s trials but ordered that they be

tried simultaneously before dual juries. Prasertphong I, 206

Ariz. at 78, 92, ¶¶ 15, 91, 75 P.3d at 683, 697.

¶6 Despite the trial court’s order granting a severance,

Prasertphong, citing Rule 804(b)(3) of the Arizona Rules of

Evidence,2 sought to introduce at trial portions of Huerstel’s

statement to the police, in which Huerstel admitted that he shot

all three victims. After initially objecting to admission of

any part of Huerstel’s statement because Huerstel, as a co-

defendant, was unavailable to testify, the State subsequently

agreed that the self-incriminating portions of the statement

were admissible but argued that, under Rule 106 of the Arizona

Rules of Evidence,3 the entire statement, including statements

2
Arizona Rule of Evidence 804(b) provides that statements
against interest are not excluded by the hearsay rule if the
declarant is unavailable as a witness. Rule 804(b)(3) defines
“statement against interest” as follows:

A statement which was at the time of its making so far
contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to
civil or criminal liability, or to render invalid a
claim by the declarant against another, that a
reasonable person in the declarant’s position would
not have made the statement unless believing it to be
true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the
accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of
the statement.
3
Arizona Rule of Evidence 106 provides as follows:

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that shifted some blame to Prasertphong, should be admitted.

Specifically, the State argued that to avoid misleading the

jury, the following portions of Huerstel’s statements should be

admitted if Prasertphong sought to have the self-incriminating

portions of Huerstel’s statement admitted: that Prasertphong

entered the restaurant with the gun, that he planned to rob the

restaurant because he did not have the money to pay for the

meal, that he intended to shoot the employees, that he was the

first person to shoot anyone, that he attempted to “finish off”

one of the victims by breaking her neck, and that he went back

into the restaurant to retrieve his debit card and the payment

machine after the murders.

¶7 Prasertphong maintained that admission of the entire

statement would violate his Sixth Amendment right to confront

witnesses against him. Citing Rule 106, the trial judge

disagreed, ruling that if Prasertphong decided to introduce the

self-incriminating portions of Huerstel’s statement to police,

the remaining portions of Huerstel’s statement would be

admitted. Specifically, the trial judge ruled that “because of

the nature of the statements and the totality of the

When a writing or recorded statement or part thereof
is introduced by a party, an adverse party may require
the introduction at that time of any other part or any
other writing or recorded statement which ought in
fairness to be considered contemporaneously with it.

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circumstances, . . . they bear an adequate indicia of

reliability.” The trial judge further ruled that State v. Soto-

Fong, 187 Ariz. 186, 193-94, 928 P.2d 610, 617-18 (1996),

permitted “the admission of the entire statement . . .

notwithstanding the defendant’s confrontation clause argument.”

II

¶8 The Sixth Amendment’s Confrontation Clause provides

that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against

him.” In Roberts, the United States Supreme Court held that,

notwithstanding the Confrontation Clause, an unavailable

declarant’s out-of-court statement may be admitted so long as it

“bears adequate ‘indicia of reliability.’” 448 U.S. at 66.

Roberts further held that reliability could be inferred when the

evidence fell “within a firmly rooted hearsay exception” or had

“particularized guarantees of trustworthiness.” Id.

¶9 In Crawford, however, the Supreme Court overruled

Roberts, holding that “[w]here testimonial statements are at

issue, the only indicium of reliability sufficient to satisfy

constitutional demands is the one the Constitution actually

prescribes: confrontation.” 541 U.S. at 68-69. In Crawford,

the prosecution, under Washington Rule of Evidence 804(b)(3),

introduced, over the defendant’s objection, a taped statement

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the defendant’s wife gave to the police.4 Id. at 40. Portions

of the wife’s statement undercut the defendant’s claim of self-

defense. Id. at 40-41. The Court found a violation of the

Confrontation Clause because, with respect to such testimonial

statements, “the Sixth Amendment demands what the common law

required: unavailability and a prior opportunity for cross-

examination.” Id. at 68. Although the Court declined to define

“testimonial,” it declared that “[w]hatever else the term

covers, it applies at a minimum to prior testimony at a

preliminary hearing, before a grand jury, or at a former trial;

and to police interrogations.” Id. Because Crawford’s wife’s

statement was the result of a police interrogation, it clearly

fell within the definition of “testimonial.” See id.

III

A

¶10 Crawford established that the trial court’s and this

Court’s reliance on the Roberts test to admit Huerstel’s

statement was error. But the inquiry does not stop there. To

determine whether the Crawford error here violated the

Confrontation Clause, we must reexamine whether, under Arizona

Rule of Evidence 106, Prasertphong forfeited his Confrontation

Clause rights by introducing selected portions of Huerstel’s

4
The wife was unavailable to testify because the defendant
invoked Washington’s marital privilege statute. Crawford, 541
U.S. at 40 (citing Wash. Rev. Code § 5.60.060(1)(1994)).

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statement. As a preliminary matter, we note that Confrontation

Clause issues arise when a hearsay statement is offered by the

prosecution. See 5 Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence § 804.06[5][c][i] (2d ed. 2005).

¶11 In this case, it was Prasertphong who offered selected

portions of Huerstel’s statement to the police. In response to

the State’s objection that admitting only portions of that

statement would mislead the jury, the judge ordered that the

remaining portions be admitted under Rule 106, also known as the

rule of completeness. We must decide, therefore, whether the

trial judge violated Prasertphong’s confrontation rights by

ruling that the remaining portions of the statement be admitted

so that the jury would not be misled or confused. We conclude

that the trial judge’s ruling did not violate the Confrontation

Clause.

¶12 In Prasertphong I, we agreed with the trial judge that

“it would have been misleading to the jury to present Huerstel’s

statement as Prasertphong suggested.” 206 Ariz. at 81, ¶ 33, 75

P.3d at 686. We concluded, therefore, that “the trial court

did not err in admitting Huerstel’s entire statement under Rule

106.” Id. We cautioned, however, that “even though a statement

is admissible under a hearsay exception, admission must also

satisfy the Confrontation Clause.” Id. at 81, ¶ 34, 75 P.3d at

686 (citing State v. Bass, 198 Ariz. 571, 580, ¶ 35, 12 P.3d

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796, 805 (2000)).5 Relying on Roberts, we then held that the

admission of the entire statement under Rules 804(b)(3) and 106

did not violate the Confrontation Clause because “Huerstel’s

statements, when viewed in their entirety, were generally self-

inculpatory, and thus bore sufficient indicia of reliability.”

Id.

¶13 Upon further reconsideration of the matter in light of

Crawford, we conclude that in Prasertphong I we took the wrong

approach in addressing the issue. Admittedly, “even though a

statement is admissible under a hearsay exception, admission

must also satisfy the Confrontation Clause.” Id. at 81, ¶ 34,

75 P.3d at 686 (citing State v. Bass, 198 Ariz. 571, 580, ¶ 35,

12 P.3d 796, 805 (2000)). The admission of Huerstel’s entire

statement under Rule 106, however, did not raise Confrontation

Clause problems because it was Prasertphong himself who

introduced selected portions of the statement. The trial court

permitted admission of the remaining portions only to ensure

that those selected portions of that statement did not mislead

the jury.

5
We note that in State v. Bass, 198 Ariz. 571, 12 P.3d 796
(2000), it was the state that introduced the statements that
this Court ultimately found violated the Confrontation Clause.
See id. at 574-75, 580, ¶¶ 5, 37-38, 12 P.3d at 799-800, 805.

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¶14 Arizona adopted Rule 106, which is a partial

codification of the rule of completeness, verbatim from Federal

Rule of Evidence 106. Both rules provide that “[w]hen a writing

or recorded statement or part thereof is introduced by a party,

an adverse party may require the introduction at that time of

any other part or any other writing or recorded statement which

ought in fairness to be considered contemporaneously with it.”

¶15 The rule of completeness does not always require the

admission of the entire statement. Instead, it requires the

admission of those portions of the statement that are

“‘necessary to qualify, explain or place into context the

portion already introduced.’” United States v. Branch, 91 F.3d

699, 728 (5th Cir. 1996) (quoting United States v. Pendas-

Martinez, 845 F.2d 938, 944 (11th Cir. 1988)).

¶16 In this case, the trial court concluded that it was

necessary to introduce the entire statement of Huerstal so as

not to mislead the jury. We agreed. Prasertphong I, 206 Ariz.

at 81, ¶ 33, 75 P.3d at 686. The inquiry could have ended

there. Neither the trial court nor this Court needed to examine

whether Huerstel’s statement satisfied the now-defunct Roberts

reliability test because the admission of the remaining portions

of Huerstel’s statement under Rule 106 did not raise a

Confrontation Clause problem; Prasertphong forfeited his

Confrontation Clause right not to have Huerstel’s statement

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admitted against him when Prasertphong himself introduced

selected portions of that statement.6

B

¶17 A decision from this Court compels the result we reach

today. In State v. Soto-Fong, an informant made two separate

statements to police about a conversation with Soto-Fong’s

alleged accomplices. 187 Ariz. 186, 192-93, 928 P.2d 610, 616-

17 (1996). Soto-Fong attempted to introduce the first statement

in which the informant said that “Cha-Chi” was the murderer.

Id. at 193, 928 P.2d at 617. The state, however, argued that it

should be able to introduce the second statement, in which the

informant identified “Cha-Chi” as “Martin [Soto-Fong], Betty

Christopher’s boyfriend.” See id. at 192-93, 928 P.2d at 616-

17. The trial court agreed, ruling that if Soto-Fong introduced

the first statement, the state would be permitted to introduce

the subsequent statement even though it inculpated Soto-Fong.

Id. We affirmed, concluding that “once [Soto-Fong] made the

6
In his reply brief, Prasertphong argues that we cannot
consider this point. He reasons that because the State raised
“waiver” in its answering brief in the original appeal and we
did not address waiver in Prasertphong I, “we necessarily
determined that the issue was not waived.” But nowhere in
Prasertphong I did we hold that waiver or forfeiture did not
apply. Instead, because at that time the Roberts test seemed so
conclusive as to Prasertphong’s Confrontation Clause contention,
we found it unnecessary to address the State’s waiver argument.
Because we neither expressly nor implicitly rejected the State’s
waiver argument, we believe that the State has appropriately
raised the issue of whether Prasertphong forfeited his
Confrontation Clause claim.

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tactical decision to introduce some of [the informant’s]

testimony about [the conversation with the two alleged

accomplices], he could not simultaneously preclude the state

from introducing other evidence of that same conversation.” Id.

at 194, 928 P.2d at 618.

¶18 Permitting the State to introduce the remaining

portions of Huerstel’s statement under the rule of completeness

in this case falls within the rule of Soto-Fong. Indeed in this

case, the State merely sought to introduce the remaining

portions of the same statement to put the selected portions in

their proper context, not a separate statement altogether. The

trial court recognized this circumstance when it ruled that

Soto-Fong permitted “the admission of the entire statement[.]

[O]nce a portion of defendant Huerstel’s statement [was] sought

to be admitted by the defendant Prasertphong[,] then the balance

of the statement [could] be admitted notwithstanding the

defendant’s confrontation clause argument.”

¶19 Accordingly, Soto-Fong fully supports the trial

court’s original decision and the conclusion we reach in today’s

opinion.

C

¶20 In addition to our decision in Soto-Fong, decisions

from other jurisdictions support our conclusion. A number of

states have held that the rule of completeness allows a trial

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judge the discretion to admit the balance of a statement if a

defendant seeks to introduce a portion of an accomplice’s

statement. See, e.g., Burke v. State, 484 A.2d 490, 496-97

(Del. 1984) (finding no abuse of discretion when trial judge

admitted remaining portion of statement after defendant admitted

a potentially misleading portion); Ramirez v. State, 739 So. 2d

568, 580 (Fla. 1999) (concluding that the rule of completeness

did not require admission of accomplice’s entire statement on

redirect because defendant did not elicit any parts of

accomplice’s confession during cross-examination); Carr v.

State, 655 So. 2d 824, 835 (Miss. 1995) (holding that, under the

rule of completeness, it was not error for trial judge to permit

the state to introduce remainder of accomplice’s statement

because defendant introduced a potentially misleading portion);

State v. Roberts, 14 P.3d 713, 728 (Wash. 2000) (concluding, on

facts similar to those before us, that a trial judge has

discretion, under the rule of completeness, to require admission

of the entire statement); see also Kennard v. State, 531 So. 2d

934, 935, 937 (Ala. 1986) (concluding that, under the doctrine

of curative admissibility,7 the trial court properly admitted the

7
The rule of curative admissibility provides that “otherwise
inadmissible evidence will be admitted to rebut inadmissible
evidence placed before the fact-finder by the adverse party.”
Black’s Law Dictionary 387 (7th Ed. 1999). The rationale used
by the court in Kennard to justify the admission of the disputed

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remaining portion of a confession once the defense admitted a

potentially misleading portion of it).

¶21 Federal case law also supports our conclusion that the

rule of completeness confers upon trial judges the discretion to

admit the remaining portions of a statement if the redacted

portion of the statement may mislead the jury. See United

States v. Moussaoui, 382 F.3d 453, 481-82 (4th Cir. 2004)

(holding that “the defense’s ability to propose substitutions

based on the language of the [Redacted] summaries is not a

license to mislead the jury”; therefore, the government can seek

to admit the remaining portions under the rule of completeness

so long as it does not seek to admit inculpatory statements that

“neither explain nor clarify the statements designated by

[defendant]”); United States v. Washington, 12 F.3d 1128, 1137

(D.C. Cir. 1994) (finding that trial court did not abuse its

discretion “by conditioning admission of the impeaching portions

of the officers’ prior statements on the admission of these

prior statements in their entirety”).

D

¶22 Finally, we note that legal scholars have reasoned

that admission under the rule of completeness should not depend

upon whether the portion sought to be introduced to complete the

evidence is the same rationale that justifies admission of
statements under the rule of completeness.

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statement necessarily complies with some other rule of evidence.

McCormick, for example, points out that “[i]t is sometimes

stated that the [remaining portion of a statement] may be

introduced only if it is otherwise admissible.” McCormick on

Evidence § 56 at 250 & n.8 (5th Ed. 1999) (citing Pendas-

Martinez, 845 F.2d at 944 n.10 (explaining that there is a split

among the circuits regarding whether otherwise inadmissible

evidence can be admitted under Rule 106)). McCormick maintains,

however, that

as a categorical rule, that statement is unsound. In
particular, the statement is inaccurate as applied to
hearsay law. At least when the other passage of the
writing or statement is so closely connected to the
part the proponent contemplates introducing that it
furnishes integral context for that part, the passage
is admissible on a nonhearsay theory. Moreover, since
the complex of admissibility doctrines includes the
concept of waiver of objection through “door opening,”
otherwise inadmissible part [sic] often becomes
admissible. Ultimately, whether an otherwise
inadmissible part offered to explain, modify, or
qualify the part already received is admitted should
depend upon whether its probative value for that
purpose is substantially outweighed by dangers of
unfair prejudice, confusion of the issues, misleading
the jury, or waste of time.

Id. at 250-52 (footnotes omitted); see also Faust F. Rossi,

Evidence: 1999-2000 Survey of New York Law, 51 Syracuse L. Rev.

489, 498-99 (2001) (explaining that a number of states hold that

the explanatory portion of a statement may be admitted under the

rule of completeness only if it is otherwise admissible but

arguing that that “approach makes little sense. If the

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explanation required to prevent distortion must be admissible

independent of its corrective function, then the purpose of the

rule of completeness is defeated.”).

E

¶23 We conclude, therefore, that the trial court’s and

this Court’s application of the now-defunct Roberts test did not

violate the Confrontation Clause. Prasertphong forfeited his

Confrontation Clause right not to have Huerstel’s entire

statement admitted against him when he made the tactical

decision to introduce portions of the statement that, standing

alone, had the serious potential to mislead the jury. See Soto-

Fong, 187 Ariz. at 193-95, 928 P.2d at 617-19.8

8
Prasertphong’s reliance on selected post–Crawford state
court cases is misplaced. All those cases involved the
prosecution introducing statements taken by the police of
witnesses or co-defendants. See, e.g., People v. Fry, 92 P.3d
970, 973-77 (Colo. 2004) (finding Crawford violation when
prosecution called witness to testify at preliminary hearing and
later attempted to introduce that testimony at trial because
preliminary hearings do not provide an adequate opportunity for
defendants to cross-examine witnesses against them); Clark v.
State, 891 So. 2d 136, 138-42 (Miss. 2004) (finding Crawford
violation when state introduced accomplice’s statement to police
against defendant); State v. Alvarez-Lopez, 98 P.3d 699, 702-07
(N.M. 2004) (finding Crawford violation when state called
officer to the stand to testify about statements an unavailable
co-defendant made to the officer regarding defendant’s
participation in a burglary); State v. Johnson, 98 P.3d 998,
1001-02 (N.M. 2004) (finding Crawford violation when prosecution
introduced accomplice’s tape-recorded statement to police);
Brooks v. State, 132 S.W.3d 702, 703-08 (Tex. App. 2004)
(finding Crawford violation when state introduced statement from
non-testifying co-defendant).

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 IV

A

¶24 Crawford does not affect the constitutionality of Rule

106 or its application in this case. In fact, Crawford

suggested that exceptions to the Confrontation Clause that do

not look to reliability as a basis for admitting statements

remain constitutionally intact after Crawford. According to the

Court,

[t]he Roberts test allows a jury to hear evidence,
untested by the adversary process, based on a mere
judicial determination of reliability. It thus
replaces the constitutionally prescribed method of
assessing reliability with a wholly foreign one. In
this respect, it is very different from exceptions to
the Confrontation Clause that make no claim to be a
surrogate means of assessing reliability. For
example, the rule of forfeiture by wrongdoing (which
we accept) extinguishes confrontation claims on
essentially equitable grounds; it does not purport to
be an alternative means of determining reliability.

541 U.S. at 62 (citation omitted). We conclude that Rule 106,

the rule of completeness, is similar to the rule of forfeiture

in that it does not purport to be an alternative means of

determining reliability. Rather, the rule of completeness, like

the rule of forfeiture, “extinguishes confrontation claims

essentially on equitable grounds.” Rule 106 does not permit

admission of the remaining portion of a statement because that

remaining portion is reliable but rather because it would be

unfair to mislead the jury by admitting the redacted portion,

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particularly when a defendant chooses to introduce the portion

of the statement or writing that the trial court has found to be

incomplete and thus misleading to the jury.

B

¶25 Moreover, the Crawford error here did not affect the

outcome of the verdict. Indeed, if we were to remand this case

for a new trial, Prasertphong would be faced with precisely the

same choice he had in his first trial. Prasertphong would again

have to decide whether to introduce the selected portions of

Huerstel’s statement. If he did, however, under Rule 106, the

State could seek admission of other contextualizing portions of

the statement so that the jury would not be misled or confused.

C

¶26 We acknowledge that “[f]ew rights are more fundamental

than that of an accused to present witnesses [and evidence] in

his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302

(1973) (citations omitted). But “[i]n the exercise of this

right, the accused, as is required of the State, must comply

with established rules of procedure and evidence designed to

assure both fairness and reliability in the ascertainment of

guilt and innocence.” Id.

¶27 A simple example demonstrates how unfair and

unreliable trials would be if we adopted Prasertphong’s

position. Under Prasertphong’s analysis, if a co-defendant had

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confessed to the police that he murdered two people, but then

subsequently said in the same interview that the defendant

forced him to do so at gunpoint, the defendant could introduce

the first portion of the co-defendant’s statement to the police

because it was a statement against interest. Ariz. R. Evid.

804(b)(3). The state, however, could not introduce the

remainder of the confession under Rule 106 because it would

violate Crawford.9

¶28 Such a position transforms the Confrontation Clause

from a shield to a sword. Cf. United States v. Nobles, 422 U.S.

225, 241 (1975) (“The Sixth Amendment does not confer the right

to present testimony free from the legitimate demands of the

adversarial system; one cannot invoke the Sixth Amendment as a

justification for presenting what might have been a half-

truth.”); United States v. Fairchild, 505 F.2d 1378, 1383 (5th

Cir. 1975) (holding that once defendant, who had invoked his

Miranda rights, claimed at trial that he was cooperative with

the police, “the evidence of [defendant’s] Miranda silence was

9
Of course a trial court, in the exercise of its discretion,
could preclude the admission of such a statement in its
entirety. See, e.g., United States v. LeFevour, 798 F.2d 977,
981 (7th Cir. 1986). But Prasertphong has insisted throughout
these proceedings that he has an absolute right to present those
portions of Huerstel’s statement that tend to exculpate him,
while at that same time insisting that other portions of
Huerstel’s statement that the trial court found to be necessary
for a fair presentation of the evidence be excluded under the
Confrontation Clause.

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admissible for the purpose of rebutting the impression which he

attempted to create: that he cooperated fully with the law

enforcement authorities”); State v. Cannon, 148 Ariz. 72, 75-77,

713 P.2d 273, 276-78 (1985) (holding that if defendant testified

that his police statement was coerced, prosecution could play

entire interrogation tape to show lack of coercion, even though

it would disclose admissions to numerous uncharged robberies).

¶29 Accordingly, we hold that once Prasertphong made the

tactical decision to introduce portions of Huerstel’s statement,

he forfeited any claim that the introduction of the remainder of

the statement, which the trial court found necessary to prevent

the jury from being misled, violated the Confrontation Clause.

See Soto-Fong, 187 Ariz. at 193-95, 928 P.2d at 617-19.

V

¶30 For the foregoing reasons, we conclude that Crawford

does not affect the validity of Prasertphong’s convictions in

this case, and therefore we affirm his convictions.

__________________________________
Michael D. Ryan, Justice

CONCURRING:

_________________________________________
Ruth V. McGregor, Chief Justice

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_________________________________________
Rebecca White Berch, Vice Chief Justice

_________________________________________
Charles E. Jones, Justice (Retired)

NOTE: Justice Hurwitz took no part in the consideration or
decision of this case.

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