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 
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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 resentencing 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).
- 3 -

light of Crawford, the admission of the unavailable codefendant’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 
- 4 -

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 codefendant, 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. 
- 6 -

circumstances, . . . they bear an adequate indicia of 

reliability.” The trial judge further ruled that State v. SotoFong, 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 selfdefense. 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 crossexamination.” 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)). 
- 8 -

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 
- 9 -

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 selfinculpatory, 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. 
- 10 -

¶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. PendasMartinez, 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. 
- 12 -

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 
- 13 -

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 
- 14 -

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. 
- 15 -

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 PendasMartinez, 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 
- 16 -

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 SotoFong, 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). 
- 17 -

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, 
- 18 -

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 
- 19 -

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 halftruth.”); 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. 
- 20 -

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 
- 21 -

_________________________________________ 

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.