Bernal v. People, No. 00SC12.

Citation44 P.3d 184
Decision Date18 March 2002
Docket NumberNo. 00SC12.
PartiesJesse BERNAL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtSupreme Court of Colorado

Rehearing Denied April 22, 2002.1

David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender Denver, Colorado, Attorneys for Petitioner.

Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

Defendant Jesse Bernal (Bernal) was convicted of second degree kidnapping, aggravated robbery, conspiracy to commit aggravated robbery, and second degree assault. The court of appeals affirmed his convictions in People v. Bernal, No. 98CA448 (Colo.Ct. App. Nov. 18, 1999)(not selected for official publication). We granted certiorari to consider two issues. First, Bernal contends that his due process right to a fair trial was violated by admission of testimony regarding an out-of-court identification based on an impermissibly suggestive photo array. Second, Bernal contends that the admission of a hearsay statement by his co-defendant violated his rights under the Confrontation Clause.2 We reverse in part, affirm in part, and remand.

With regard to the first issue, we conclude that the photo array was impermissibly suggestive. Because we find that the trial court failed to make adequate factual findings regarding the reliability of the impermissibly suggestive out-of-court identification, we remand with directions to the trial court to make such findings consistent with this opinion.

With regard to the second issue, we conclude that the co-defendant's statement offered against Bernal pursuant to CRE 804(b)(3) was inferentially inculpatory and did not satisfy the Confrontation Clause's requirement of trustworthiness and reliability. On this issue, we also remand with directions.

I. Facts and Procedure3

On the afternoon of December 12, 1996, two men, wearing baseball caps and sunglasses, robbed a credit union in Brighton, Colorado. Mandie McBride (McBride), an assistant manager, noticed a light blue or gray car pull up to the bank and saw two men exit the car and approach the credit union. McBride was sitting at her desk when the first man entered the credit union. At trial, McBride testified that she did not see the face of the man as he entered the credit union. The man approached her desk with a gun, grabbed her by the hair, and demanded to be taken to the vault. McBride testified that once the robber grabbed her by the hair, she did not see him anymore.4 The robber pushed McBride towards the vault, which was located next to the manager's office. McBride testified that while walking to the vault, she did not see the robber because he was behind her. When asked about the robber's facial features, McBride testified that she could not see the robber's eyes, and that she did not notice his ears, teeth, or chin. In fact, her testimony revealed that all she saw of the robber was his black hair and "puffy" cheeks.

The manager, Kathy Wagner (Wagner), was at her desk when the robber and McBride entered her office. At trial, Wagner testified that the robber was behind McBride when they entered her office. The robber instructed Wagner to go to the vault and he followed behind. When describing the robber's facial features, Wagner testified that she saw the robber's profile, but could not give any detailed description of the robber. Furthermore, the robber told the women not to look at him and struck them with the barrel of the gun when they did. Wagner opened the vault and gave him the cash in the vault, nearly $12,000. Once the man had the money, he left. During the robbery, a second man armed with a gun stood in the lobby and demanded that the two other credit union employees and a customer get on the floor. The robbery lasted no longer than several minutes and both women testified that everything happened quickly and that they were scared.

Immediately after the robbery, Wagner and McBride gave a statement to the police. Although the lighting in the credit union was good and both women had been trained to deal with robberies, they were unable to give a detailed description of the robber. Both women described his appearance as a "Hispanic" male with a medium complexion. Wagner expanded on this physical description by stating that the robber had a "rough" complexion. The eyewitnesses also described the robbers as "sounding Hispanic." The only other description given was an approximate height and weight of the robber. Other witnesses gave similar descriptions, and also described the robbers as being roughly the same height.

Soon after the robbery, the police located the car used by the robbers. Two baseball caps and two pairs of sunglasses were found in the car. Police investigators also procured physical evidence linking Bernal's co-defendant, Raymond Rodarte (Rodarte) to the car. Specifically, a hair removed from one of the baseball caps in the car was consistent with Rodarte's. The police developed the co-defendants as suspects, at least in part, from information provided by the car's owner, Daniel Tucker (Tucker). In particular, Tucker told police that he had previously met Rodarte. He also told police that his car had been stolen the night before but that a friend, Tano Torres (Torres), had a key and might have taken it. Tucker stated that when he discovered the car was missing, he paged Torres, who returned the call. Tucker's girlfriend, Walynda Marshall (Marshall) testified that Torres had called earlier that day; her caller ID revealed that Torres had called from a telephone identified as Rodarte's. Tucker further told the police that he had previously met Bernal through both Rodarte and Torres.

On January 28, 1997, approximately six weeks after the robbery, the witnesses were shown a photo array that consisted of six color photographs of young men arranged in two rows of three, with Bernal appearing in the middle of the top row. Bernal's photograph appears to be the only photograph of an "Hispanic" male, although one of the other photographs could be perceived as also depicting an "Hispanic" male. Bernal's photograph also stands out from the six as the only one with a clear white background. The other photographs have a neutrally colored venetian blind backdrop. Two of the young men in the photographs have blue eyes. Each of the photographs is only of the head and neck and reveals nothing of the height or weight of the young men. After examining the photo array for approximately two minutes, Wagner selected Bernal's photograph. McBride looked at the photo array for approximately one minute before selecting Bernal's picture.

Based on the above evidence, Bernal and Rodarte were arrested and charged with kidnapping, aggravated robbery, conspiracy to commit aggravated robbery, and second degree assault. Bernal and Rodarte were tried separately.

Prior to trial, defense counsel filed a motion to suppress evidence of the out-of-court identification of Bernal by Wagner and McBride. At the pretrial motions hearing, the prosecution presented Detective Grose (Grose).5 Although defense counsel had subpoenaed Wagner and McBride, the trial court refused to hear their testimony. After hearing Grose's testimony, the trial court stated that it was unnecessary for it to hear the testimony of Wagner and McBride, the eyewitnesses, to make its ruling.

In ruling on the motion to suppress, the trial court inconsistently found the photo array to be both "not suggestive," and not "so impermissibly suggestive" as to require suppression of the out-of-court identification. Because the trial court's findings are extraordinarily limited, it is unclear what standard the court used to deny the motion. The trial court did state that the credit union had good lighting and, somewhat callously, that the "fact that the women were getting whacked with a gun would certainly focus their attention." However, by refusing to entertain the testimony of the eyewitnesses, the trial court implied that it did not think it necessary to address the reliability of the identification. The out-of-court identifications were thus admitted at trial.

At trial, the prosecution successfully sought to admit a hearsay statement made by Rodarte to Grose. Grose testified regarding several interviews he conducted with Rodarte on the day that Rodarte was arrested. The statements were given at the Brighton police station. Although Grose testified regarding several statements made by Rodarte, the statement at issue in this appeal was as follows: "He [Rodarte] admitted to taking the car, but adamantly denied being involved in the robbery." The trial court admitted the statement pursuant to CRE 804(b)(3), the "statement against interest" exception to the hearsay rule. The trial court made no findings regarding the reliability or trustworthiness of the statement pursuant to the Confrontation Clause.

Bernal was convicted on all counts and sentenced to forty-six years in prison. The court of appeals affirmed Bernal's convictions.6 With regard to the photo array, the court of appeals held that it was "not unduly suggestive" and the out-of-court identifications were thus properly admitted at trial. Bernal, No. 98CA448, slip op. at 4. A dissenting judge disagreed, opining that the photo array was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Id. at 24 (Casebolt, J., dissenting). With regard to the admission of Rodarte's statement under 804(b)(3), the court of appeals held that the trial court failed to undertake the required Confrontation Clause inquiry regarding whether the statement bore "particularized guarantees of trustworthiness," and therefore erroneously admitted the statement. However, the court of appeals found that the admission of the statement was constitutional...

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