Nunez v. People

• Decision Date: 26 May 1987
• Docket Number: No. 85SC15,85SC15
• Citation: 737 P.2d 422
• Parties: Antonio NUNEZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 422

737 P.2d 422

Antonio NUNEZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 85SC15.

Supreme Court of Colorado En Banc.

May 26, 1987.

Karp & Dodge, Sander N. Karp, Shelley P. Dodge, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for respondent.

ROVIRA, Justice.

We granted certiorari to consider the court of appeals decision in People v. Nunez, 698 P.2d 1376 (Colo.App.1984), which affirmed the conviction of the petitioner, Antonio Nunez, for the sale of a narcotic drug. Petitioner argues that the admission of certain statements made by a person who was not a witness, even if not forbidden by the rule against hearsay, nonetheless violated his right to be confronted by the witnesses against him under the United States and Colorado Constitutions. U.S. Const. amend. VI; Colo. Const. art. II, § 16. He also argues that his challenge for cause to one of the jurors was wrongly denied. We are not persuaded by either of his arguments and affirm his conviction.

I.

Midafternoon of January 26, 1981, Raul Batista, an undercover police officer, and Porfirio Roybal, a police informant, went to a bar in Denver to purchase heroin. Roybal was known in the bar as a heroin user and dealer. They were aware that Charles Lamorie, a drug dealer, frequented the bar. Testimony from Batista and Roybal at trial revealed the following events.

Once inside the bar, the two were approached by Lamorie. Batista told Lamorie he was interested in purchasing one-half ounce of heroin. Lamorie then told Batista that he would "call his connect and see what was going." ¹ Roybal then accompanied Lamorie to the public phone while Batista stayed at the table.

Roybal observed Lamorie placing a call and heard him talking about a drug deal. The person to whom Lamorie was talking apparently inquired who the buyer was, because Lamorie named Roybal, and then handed the phone to Roybal. Roybal asked Lamorie who was on the phone, and Lamorie said "Pic." "Pic" and "Piccolo" were aliases used by petitioner. Roybal had heard of "Piccolo," but had never met or spoken with him. A drug sale from "Piccolo" to Batista and Roybal was arranged.

"Piccolo" wished to sell drugs packaged differently, and more expensively, than Batista had originally intended to purchase. Batista and Roybal therefore left, obtained more money from another officer, and returned to the bar. Lamorie, who had remained at the bar, said it would take a "little longer." Approximately thirty minutes later, petitioner and two others entered the bar and sat down at a table with Batista, Roybal, and Lamorie. Lamorie introduced Batista and Roybal to "Piccolo." A brief conversation followed, in which the petitioner stated that the heroin was already cut and packaged to sell on the street. Roybal recognized petitioner's voice as the same one he had heard on the phone.

The petitioner said he would go get the drugs, and he and Lamorie left for a few moments, then returned and reseated themselves at the table. Roybal passed the $700 for the sale under the table to Lamorie, who was seated between petitioner and Roybal. Lamorie and the petitioner were observed doing something with their hands under the table. Then Lamorie indicated that Batista and Roybal should follow him to the men's room. There, Lamorie gave Batista 20 packets of heroin. Lamorie kept one packet, saying it was his fee for "setting up the connect."

Lamorie did not testify at trial. Throughout the testimony of Roybal and Batista, the petitioner repeatedly objected to the admission of Lamorie's statements on the grounds that they were hearsay. The trial court ruled that the statement, "I'm going to call my connect" was a statement of presently existing state of mind, and therefore admissible as an exception to the hearsay rule under CRE 803(3). ² The trial court also found that a conspiracy between Lamorie and petitioner began at the time of the phone call, and so all subsequent statements were not hearsay under CRE 801(d)(2)(E). ³ The defendant was convicted of selling a narcotic in violation of section 12-22-302, 5 C.R.S. (1978).

The court of appeals affirmed. We granted certiorari to consider the defendant's contention that admission of Lamorie's statements violated his confrontation clause rights and to consider whether one of his challenges for cause to a juror was improperly denied.

II.

In People v. Dement, 661 P.2d 675 (Colo.1983), we considered the interaction between the "excited utterance" exception to the hearsay rule, CRE 803(2), ⁴ and the confrontation clause. We declined to establish a per se rule either allowing the hearsay exception to always satisfy the confrontation clause or to always require production of the declarant. Instead, we adopted the two-step case-by-case analysis formulated by the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

The first step is whether the People can demonstrate that the declarant is unavailable.

Unavailability "in the constitutional sense" is established by the prosecution when good faith, reasonable efforts have been made to produce the witness without success. However, the burden on the prosecution to produce the declarant for trial or to prove his unavailability applies only "in the usual case," and is subject to an exception when "the utility of trial confrontation [is very] remote."

Dement, 661 P.2d at 681 (citation omitted). We then elaborated on the "remote utility exception" by examining Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), where the prosecution was not required to produce an available witness when, among other factors, the hearsay evidence was not crucial or devastating, other evidence established that the hearsay declarant had personal knowledge of the fact asserted in the hearsay declaration, the statement was spontaneous and against the declarant's penal interest, and defense counsel cross-examined an eyewitness to the crime. Dement at 681.

The petitioner argues that the statement by Lamorie--"I'm going to call my connect"--was crucial because it established the conspiracy, which allowed other inculpatory statements to be admitted. We disagree. Even without Lamorie's initial statement, the evidence is sufficient for the court to infer a conspiracy.

Batista and Roybal testified that Lamorie was asked about purchasing some drugs. Roybal followed Lamorie to a phone, where Lamorie placed a call. Lamorie gave the receiver to Roybal, who negotiated a drug sale. A short time later, the petitioner, whose voice Roybal recognized as the same as the person whom he talked to on the phone, arrived. The previously negotiated drug sale was confirmed. Petitioner then said he would go get the drugs, and he and Lamorie left for a short time. They then returned, and Roybal passed money to Lamorie under the table, then the petitioner and Lamorie were seen doing something with their hands under the table. Lamorie then gave the drugs to Roybal and Batista. This evidence is more than sufficient to establish a prima facie conspiracy for the purposes of CRE 801(d)(2)(E). See People v. Schlepp, 184 Colo. 28, 518 P.2d 824 (1974) (conspiracy can be inferred where codefendant was seen talking to defendant, came to undercover police officers, stated the new price, officers gave him the purchase money, codefendant returned to defendant, defendant was seen reaching into his pocket, and codefendant then came back to police officers and had illegal drugs); cf. People v. Braly, 187 Colo. 324, 532 P.2d 325 (1975) (mere presence of the defendant at the location of the illegal transaction is not enough to establish conspiracy).

The introduction of Lamorie's initial statement, like the statement in Dutton, was neither crucial nor devastating, but merely incidental. The People were therefore not required to demonstrate the unavailability of Lamorie. ⁵

The second step of the analysis adopted in Dement is whether the statement bears indicia of reliability sufficient to make it trustworthy without subjecting the declarant to cross-examination. In this case, all of the factors noted in Dutton are present. Lamorie's statement was spontaneous, against his penal interest, could be verified by an independent source, and eyewitnesses to the crime could be cross-examined at length. Cf. Dement (where three witnesses heard hearsay declarant state that defendant had struck the victim, but none of the witnesses had seen the blow, statement could not be admitted even though it fell within the "excited utterance" exception to the hearsay rule, partially because there was no independent verification and no other eyewitnesses to the crime).

We conclude under these circumstances that the admission of the hearsay statement, "I'm going to call my connect," did not violate the petitioner's confrontational rights under either the United States or Colorado Constitutions.

III.

Next, the petitioner argues that the subsequent statements of Lamorie admitted pursuant to the "coconspirator" exception also violated his right to confront witnesses against him. He argues that these statements cannot meet the two-step test in Dement because Lamorie's unavailability was never established.

Again, if cross-examination of Lamorie would have been of very remote utility, the People need not demonstrate his unavailability. Just as in Dutton and the "present state...