Compan v. People, 04SC422.

• Decision Date: 03 October 2005
• Docket Number: No. 04SC422.,04SC422.
• Parties: Petitioner: Marco COMPAN, v. Respondent: The PEOPLE of the State of Colorado.
• Court: Colorado Supreme Court

Page 876

121 P.3d 876

Petitioner: Marco COMPAN, v. Respondent: The PEOPLE of the State of Colorado.

No. 04SC422.

Supreme Court of Colorado, En Banc.

October 3, 2005.

David S. Kaplan, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, for Petitioner.

John W. Suthers, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, for Respondent.

RICE, Justice.

Petitioner Marco Compan was convicted of third degree assault. The victim, Petitioner's wife Angelica Martinez, did not testify. As a result, the principal evidence against Petitioner was hearsay statements made by the victim to her friend Gloria Vargas. The trial court admitted the victim's statements as excited utterances pursuant to CRE 803(2). We granted certiorari to determine whether admission of the victim's statements infringed Petitioner's confrontation rights under the United States and Colorado Constitutions. Upon review, we hold that the admission of the victim's statements did not deprive Petitioner of his federal and state constitutional rights to confront the witnesses against him. Accordingly, we affirm his conviction.

I. Factual and Procedural History

On the day of the assault in August 2001, the victim made two telephone calls to Vargas from a payphone outside the restaurant she and Petitioner owned. During the first call, the victim told Vargas that Petitioner was angry and yelling at her; she feared Petitioner would hit her. Vargas could barely understand the victim because she was crying so hard and talking nervously in broken speech. The victim wanted to be picked up and asked to stay at Vargas's home. Vargas agreed to help, but the victim asked her to wait for a second call before coming to the restaurant in order to calm Petitioner down and gather up some personal belongings.

About twenty minutes later, the victim telephoned Vargas again, immediately declaring, "Gloria, he already hit me. He already hit me. Come get me." Noticing the victim sounded more subdued, very quiet and sad as if she could barely talk, Vargas told her she would be right there to pick her up.

When Vargas arrived at the restaurant about fifteen minutes later, the victim immediately approached her vehicle and exclaimed, "Gloria, I just have to tell you what's been happening to me. I can't believe it." The victim was crying, and Vargas noticed the victim's face and arms were reddened. She told Vargas that she was hurt, pointing to her abdomen. Vargas asked what had happened, but the victim looked back toward Petitioner and whispered, "Let's hurry. Let's hurry, hurry. Get out of here. He's standing right there, and he might come after me." Vargas quickly loaded the victim's belongings into her van, and drove the victim to her home.

While riding in Vargas's van, the victim was biting her nails, shaking, and crying. She told Vargas, "I'm scared. I'm scared and afraid." The victim explained that Petitioner had slapped her, pulled her hair, and threw her against a wall. Vargas then learned that Petitioner also had kicked and punched the victim in her stomach.

Vargas drove directly home, and upon arriving, led the victim inside without stopping to unload her belongings. The victim continued recounting the assault in a visibly frightened manner. She repeated that Petitioner had thrown her against the restaurant wall and added that Petitioner also had choked her with both hands. After twenty or thirty minutes, Vargas made the victim a cup of tea to help her calm down, and the victim asked Vargas to call the police and take her to the hospital.

The prosecution was unable to produce the victim at trial and filed a notice of its intention to introduce her hearsay statements as recounted by Vargas. The trial court held a hearing in April 2002 to determine the admissibility and constitutionality of the victim's statements. In addition to the aforementioned summary of the victim's statements and her demeanor, Vargas testified she had not seen the victim for about four months. Vargas did not know where the victim was and had no idea how to get in touch with her. Vargas even had tried to contact the victim at her mother's home in Mexico City. Vargas called several times, but no one answered. About one week before the hearing, the victim's mother called, wondering if Vargas knew where the victim was. Vargas did not, but she learned the victim's mother had not heard from the victim for about one month. Based on what she last heard, the victim's mother believed the victim was somewhere in California.

The district attorney stated that he personally had tried to determine the victim's whereabouts. In addition to telephoning Vargas, the district attorney explained that his office sent a certified letter to Vargas in October. Although Vargas signed for the letter, neither she nor the victim contacted the district attorney's office as requested. Following up on this letter, a police detective learned from Vargas around October that the victim was no longer staying with her. Vargas told the police detective she believed the victim had returned to her mother's house in Mexico because she was afraid to testify against Petitioner. The police detective made a second attempt to contact the victim through Vargas in December or January, but no one answered the door at Vargas's home.

Additional testimony revealed that in February, the victim appeared at the district attorney's office on a Friday afternoon and made an appointment for the following Monday to formally recant her accusation. She gave her address only as "a motel Platte," and she did not show up for the appointment on Monday. Realizing the victim at least had been in the county, the prosecution requested a continuance in March. Yet, since it had no address or telephone number for the victim, the district attorney was unable to locate her before trial. Another call was made to Vargas, but Vargas reiterated that the victim was no longer staying with her, and she believed the victim was in Mexico.

Upon the above evidence, the trial court admitted the victim's statements to Vargas as excited utterances. However, the trial court limited admission only to the statements made while the victim was still under stress from the startling event. The trial court did not allow Vargas to testify about any of the victim's statements made after she arrived at Vargas's home and had begun to calm down while drinking tea. As for Petitioner's confrontation rights, the trial court found no deprivation because the victim was unavailable to testify at trial, despite the prosecution's reasonable efforts, and her hearsay statements bore sufficient indicia of reliability.

Following conviction, Petitioner sought review. He argued that the trial court committed reversible error when it admitted Vargas's testimony. According to Petitioner, the victim's hearsay statements were not admissible as excited utterances, and even if they were, her statements were testimonial and therefore violated his rights to confrontation guaranteed by the United States and Colorado Constitutions.

In a published opinion, a unanimous panel of the court of appeals affirmed Petitioner's conviction. People v. Compan, 100 P.3d 533 (Colo.App.2004). As a threshold matter, the court of appeals found that the victim's hearsay statements were properly admitted as excited utterances because the victim was under the stress of a startling event when she made the spontaneous statements to Vargas. Id. at 536.

Turning to Petitioner's constitutional challenges, the court of appeals first examined Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and concluded that only testimonial statements were protected by the United States Constitution: nontestimonial "hearsay simply lies outside the scope of the Sixth Amendment's Confrontation Clause." Compan, 100 P.3d at 538. Since it found the victim's statements were not testimonial, the court of appeals held their admission did not violate Petitioner's federal right to confront the witnesses against him. Id.

Consequently, the court of appeals next considered Petitioner's confrontation right under the Colorado Constitution. Noting that this Court "has recognized the possibility that the state constitution may afford greater protection" of an accused's confrontation right, the court of appeals "conclud[ed] that it is prudent to adhere to the rule of Roberts and Dement." Compan, 100 P.3d at 538 (citing Blecha v. People, 962 P.2d 931, 941 (Colo.1998)) (referencing Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); People v. Dement, 661 P.2d 675, 680-81 (Colo.1983)).¹ Thus, the court of appeals held that for nontestimonial hearsay, the Colorado Confrontation Clause requires unavailability and reliability.

Then, reviewing the record for satisfaction of the Dement test, the court of appeals determined that the trial court did not err in finding the victim unavailable to testify because the prosecution had made "good faith, reasonable efforts to produce the victim." Compan, 100 P.3d at 539. And since the victim's statements were properly admitted pursuant to CRE 803(2), the court of appeals found the victim's statements reliable: an "excited utterance is a firmly rooted hearsay exception," and the victim's statements "bear the necessary indicia of reliability." Id. (citing People v. Martinez, 18 P.3d 831, 836 (Colo.App.2000)). As a result, the court of appeals held that the trial court's admission of the victim's nontestimonial hearsay statements through Vargas's testimony did not violate Petitioner's confrontation right guaranteed by the Colorado Constitution. Compan, 100 P.3d at 539.

Petitioner sought further review, and we granted certiorari.² We now affirm Petitioner's conviction. Crawford only applies to testimonial statements, and the victim's statements are not testimonial. As a result, Crawford does not require Petitioner to have had a...