Blecha v. People, 97SC20

Decision Date15 June 1998
Docket NumberNo. 97SC20,97SC20
Citation962 P.2d 931
Parties98 CJ C.A.R. 3016 Clifton BLECHA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, for Petitioner.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Matthew S. Holman, Assistant Attorney General, Criminal Enforcement Section, Denver, for Respondent.

Justice BENDER delivered the Opinion of the Court.

We granted certiorari to review the court of appeals' decision in People v. Blecha, 940 P.2d 1070 (Colo.App.1996), to determine whether the hearsay statement of a previously acquitted co-defendant, Roger Younger (Younger), was properly admitted at the trial of the defendant-appellant, Clifton Blecha (Blecha). A jury convicted Blecha of first degree murder and conspiracy to commit first degree murder of a fellow inmate at the Limon Correctional Facility. The court of appeals held that the admission of Younger's statements was erroneous since the statements qualified neither as co-conspirator hearsay nor as declarations against interest. Finding that this evidentiary error did not "affect the substantial rights of the defendant," the court of appeals concluded that the error was harmless and affirmed Blecha's conviction. Id. at 1075.

We affirm the court of appeals' determination that the district court erred when it admitted Younger's hearsay statements. However, the admission of Younger's hearsay statements violated Blecha's right to confrontation under Article II, Section 16 of the Colorado Constitution. The appropriate standard of review for an error of constitutional dimension is whether, after examining the record, an appellate court can declare a belief that the error was harmless beyond a reasonable doubt and not whether the error substantially affected the verdict or the fairness of the proceedings. After careful scrutiny of the entire record we hold that this constitutional error was harmless beyond a reasonable doubt. Hence, we affirm the court of appeals' decision upholding Blecha's conviction.

I. FACTS

At the trial, an inmate eyewitness to the murder, Joseph Bates (Bates), testified to two hearsay statements made by a previously acquitted co-defendant, Younger. These statements form the basis of Blecha's appeal and require a detailed discussion of the facts.

On July 13, 1992 at approximately 9:15 p.m., staff members of the Limon Correctional Facility (LCF) found inmate Daniel Shettler (the victim) dead in his cell, lying under the covers of his upper bunk bed. The staff members discovered the body as the result of a "lockdown" of the facility that occurred at 7:00 p.m. 1 An investigation revealed that the victim was strangled by a ligature surrounding his neck, and that the time of death was approximately between 6:00 p.m. and 9:30 p.m. on July 13, 1992.

The evening of the death, investigators found a four-foot long coaxial cable 2 in an inmate trash can located in the gymnasium bathroom. The cable was consistent with the ligature marks around the neck of the victim. Investigators also retrieved a small piece of silver wire from the victim's bedding possessing similar physical characteristics to the cable found in the trash can. Subsequent investigation revealed a latent palm print of inmate James Green (Green) on the ladder leading to the victim's bunk.

The victim lived in a three-tiered pod that housed approximately fifty inmates, including Blecha, Younger, and Green. On the day of the murder, all fifty inmates were permitted to move freely throughout the pod between a lockdown that occurred at 4:00 p.m. and the lockdown that occurred at 7:00 p.m. In the days following the murder, investigators questioned all fifty inmates. During these interviews, the investigators learned of a rumor among the prisoners that the victim was killed because he was an informant in a murder that occurred six months earlier at a different prison, the Fremont Correctional Facility (FCF). Three inmates--Richard Lofton (Lofton), Randy Kailey (Kailey), and William Humphries--told investigators that Blecha, Younger, and Green killed the victim. Another inmate, Michael Ford (Ford), implicated three other inmates. However, the investigators later discounted this information. Investigators also learned that the victim's cellmate was taken from his cell by another inmate to the prison library before the murder occurred.

In August of 1992, Bates told the chief investigating officer that shortly after the murder, Younger threatened his life and told him to keep his mouth shut. The officer's opinion was that Bates feared for his life from the day of the murder until he was subsequently transferred from LCF to another facility.

In October of 1992, Blecha, Younger, and Green were charged with murder and conspiracy to commit murder. Blecha moved to exclude Younger's hearsay statements from trial, contending that the admission of these statements was prohibited by CRE 802 and by the confrontation clauses of the United States and Colorado Constitutions.

After a hearing, the district court ruled that Younger's statements were admissible as the nonhearsay statements of a co-conspirator under CRE 801(d)(2)(E). The district court then addressed Blecha's assertion that admission of these statements violated the confrontation clauses of the United States and Colorado Constitutions under the two-part test articulated in Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980). First, the district court found that Younger was not available to testify at trial because, at the time of the pre-trial hearing, Younger was protected by the Fifth Amendment privilege against self-incrimination due to the pending murder and conspiracy charges against him. Second, the district court determined that Younger's statements possessed sufficient independent indicia of reliability to overcome the presumption of unreliability that attaches to hearsay statements. Thus, the district court held that the admission of Younger's statements was appropriate under the Colorado and federal constitutions.

After this hearing, the district court severed the trials of each of the three co-defendants. In August of 1993, Younger was acquitted of all charges. Blecha's case proceeded to trial in November of 1993.

At Blecha's trial, the prosecution submitted the results of the investigation, set forth above, into evidence. The prosecution's theory was that the victim was killed pursuant to the order of the vice-president of the Aryan Brotherhood, a prison gang. Mike Schneider (Schneider), the vice-president of the gang and an inmate at FCF, believed that the victim was an informant in the unrelated prison murder that occurred at FCF. The defense's theory was that Blecha was in the gymnasium when the murder occurred, that the investigation overlooked inmate Ford's information that pointed to other suspects, and that the prosecution's case was based solely on the testimony of "liars, thieves and murderers."

Bates, who lived a few cells away from the victim, testified that on the evening of the murder he saw Younger, Green, and Blecha enter the victim's cell and shut the door. Bates testified that he walked by the victim's cell and saw Younger holding the victim in a headlock, Blecha standing in front of the victim with his hands up in the air, and Green standing behind Blecha holding a cord. Bates went to inmate Heath Pinion's (Pinion) cell and told him "they were doing Danny." Bates returned to the victim's cell and saw Green, Blecha, and Younger putting the victim on the top bunk bed. Bates then informed three additional inmates--Les Simpkins, Perniel Cannon, and Leidal--as to what he saw, and unsuccessfully attempted to rouse the victim by kicking the door to the victim's cell.

Bates further testified that the day after the murder Younger motioned to Bates by raising his index finger to his lips, indicating to Bates to be quiet. Three or four days after this incident, Younger told Bates that "[h]e knew I seen it, and he didn't want me to say anything."

Bates, who had six prior felony convictions, initially denied knowledge of the murder at an interview in July. He later indicated that he would provide information about the murder but only if he were transferred to another facility. Upon obtaining the transfer and after giving information to the authorities, Bates escaped from the new facility. In addition, Bates initially told investigators that the murder occurred before 4:00 p.m., which was physically impossible because the victim was alive at the stand-up count that occurred at the 4:00 lockdown on the day of the murder. The defense introduced evidence from inmates Simpkins and Cannon that contradicted parts of Bates's testimony.

Inmate Kailey, an ex-police officer serving a sentence for aggravated incest and a resident of a cell located near the victim's cell, also testified at trial. Although Kailey denied giving investigators information about the murder, the prosecution introduced prior inconsistent statements made by Kailey to an investigator in November of 1993 in which Kailey stated that he saw approximately ninety percent of the events surrounding the murder, but not the actual killing. These statements established that Kailey heard Blecha ask the inmates of the cell next to Kailey whether they had any cable. Kailey saw another inmate take the victim's cellmate to the library, and then saw Blecha, Green, and Younger walk into the victim's cell with Blecha holding a television cable in his hand. Kailey believed that the victim "ratted" on some of the parties...

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