State v. Damper, __ Ariz. Adv. Rep. __ No. 1 CA-CR 09-0013 (App., Div. I, March 16, 2010) (J. Johnsen)
TEXT MESSAGE MADE DURING THE EVENT AT ISSUE OR SHORTLY THEREAFTER IS A PRESENT SENSE IMPRESSION AND NOT EXCLUDED BY THE HEARSAY RULE
Defendant argued with his girlfriend which led to him shooting her in the head and killing her. He claimed it was accidental. Preceding the shooting the decedent text messaged a friend, "Can you come over? Me and Marcus are fighting and I have no gas." The trial court admitted this evidence over defendant's objection.
First defendant argued the Confrontation Clause was violated by the admission. The Court of Appeals disagreed finding as nothing in the statement showed the decedent intended or believed the statement might later be used in prosecution of defendant.
Defendant then argued the text message was hearsay. The Court of Appeals disagreed finding the text message to be a present sense impression exception to the hearsay rule-Describes or explains an event or condition and is made while the declarant was perceiving the event or condition, or immediately thereafter." Here the text said "Me and Marcus are fighting" showing it was made during or shortly after the fight.