People v. Drake, 84SA499

• Decision Date: 20 November 1989
• Docket Number: No. 84SA499,84SA499
• Citation: 785 P.2d 1253
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James Alvey DRAKE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1253

785 P.2d 1253

PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James Alvey DRAKE, Defendant-Appellee.

No. 84SA499.

Supreme Court of Colorado En Banc.

Nov. 20, 1989.

Norman S. Early, Jr., Dist. Atty., Jane E. Westbrook, Chief Deputy Dist. Atty., William Henry Kain, III, Sp. Prosecutor, Asst. Dist. Atty., and Martha L. Kent, Deputy Dist. Atty., Grand Junction, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, and Peggy O'Leary, Deputy State Public Defender, Denver, for defendant-appellee.

Justice VOLLACK delivered the Opinion of the Court.

The People appeal ¹ the trial court's order excluding the incriminating custodial out-of-court statements of a co-defendant in the murder trial of defendant James Alvey Drake. The trial court adopted the per se rule that incriminating out-of-court statements by co-defendants in custody are unreliable and therefore inadmissible. We disapprove of the trial court's ruling.

I.

In 1983 the People charged defendant James Alvey Drake (James) by information with the crime of first-degree murder, § 18-3-102(1), 8B C.R.S. (1986). The information alleged that defendant James murdered Regina Renae Drake (Regina), the wife of the defendant's brother, Richard Drake (Richard). James and Richard were originally charged in the District Court of Mesa County. The district court severed the trial of James and Richard. After Richard's trial and conviction of first-degree murder, James moved for a change of venue on the ground that the overwhelming publicity surrounding the crime and Richard's conviction prevented James from receiving a fair trial in Mesa County. The District Court of Mesa County granted the motion and transferred the trial of James to Denver District Court.

James filed a pretrial motion for an order excluding any oral or written statements by Richard. James sought to exclude several recorded conversations between Richard and an investigator from the Mesa County District Attorney's office in which Richard stated that he arranged to have James murder Regina. Richard's statements contained details of his contract with James to have James murder Regina while Richard was at work on the morning of December 16, 1983. The Denver District Court heard argument on James's motion on September 7, 1984. At the hearing Richard invoked his fifth amendment right against self-incrimination, asserting as grounds that his own case was on appeal and his conviction was not final. James argued that Richard's recorded conversations were not admissible under Colorado Rule of Evidence 804(b)(3), which establishes an exception to the hearsay rule where the declarant is unavailable and the statement in question is a statement against interest. James also argued that the admission of Richard's statements would violate his right under the sixth amendment to the United States Constitution to be confronted with the witnesses against him.

The district court held that the statements were inadmissible. After finding that Richard was unavailable, and that his incriminating statements were statements against interest under Colorado Rule of Evidence 804(b)(3), the court addressed the question whether admission of the statements under CRE 804(b)(3) would violate James's sixth amendment rights. The court concluded that the case law establishes a "per se rule" that out-of-court inculpatory statements made by complicitors in custody are inadmissible against criminal defendants. ² The court granted James's motion, and Richard's statements were excluded from the trial. Following James's conviction the People appealed the trial court's order excluding Richard's statements.

II.

Colorado Rule of Evidence 804(b)(3), which is identical to Federal Rule of Evidence 804(b)(3), provides that out-of-court statements against interest, ³ offered to prove the truth of the matter asserted, are not excluded by the hearsay rule ⁴ if the declarant is unavailable as a witness. However, a trial court risks violating a criminal defendant's rights under the confrontation clause of the sixth amendment when it admits into evidence out-of-court statements by unavailable witnesses which incriminate the defendant. The United States Supreme Court recognized this when it stated in Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1967), that

[not] only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motive to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the confrontation clause was directed.

(Footnotes omitted.) The Supreme Court held in Bruton, 391 U.S. at 126, 88 S.Ct. at 1622, that, despite the trial judge's cautionary instruction, the admission into evidence of a third party's extrajudicial confession which incriminated the defendant violated the defendant's sixth amendment rights under the confrontation clause.

In Dutton v. Evans, 400 U.S. 74, 88, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970), the Court held that the defendant's sixth amendment rights were not violated by a federal prisoner's testimony that he heard one of the defendant's accomplices make a statement in prison which appeared to blame the defendant for the murder of three police officers. The Court noted that the "mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.' " Id. at 89, 91 S.Ct. at 220 (quoting California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970)). The Court held that the admission of the hearsay testimony of the prisoner did not violate the defendant's rights under the confrontation clause because the testimony was supported by "indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant." Id.

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court adopted a two-part test to determine whether the admission of out-of-court declarations violates a defendant's sixth amendment rights. The defendant in Roberts asserted that the admission into evidence of the preliminary hearing testimony of a witness who was unavailable at trial violated his rights under the confrontation clause. Id. at 59, 100 S.Ct. at 2535. The Court held that

when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is ad issible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Id. at 66, 100 S.Ct. at 2539 (footnote omitted).

The United States Supreme Court has applied the Roberts two-part test on a case-by-case basis and not as a per se rule. ⁵ In Lee v. Illinois, 476 U.S. 530, 539, 106 S.Ct. 2056, 2061, 90 L.Ed.2d 514 (1986), the Court held that the state's use of a co-defendant's confession against the defendant violated the defendant's confrontation clause rights because the confession did not bear sufficient independent "indicia of reliability" to overcome its presumptive unreliability.

In People v. Dement, 661 P.2d 675, 681 (Colo.1983), we adopted the Roberts two-part test of the declarant's unavailability and the existence of independent "indicia of reliability" of the declarant's statement. In Dement, we stated that:

[B]ecause the [confrontation] clause reflects a "preference for face-to-face accusation," a "rule of necessity" applies, placing a burden on the prosecution either to produce the hearsay declarant for cross-examination or to demonstrate his unavailability.... 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."

Id. at 680-81 (quoting Roberts, 448 U.S. at 65, n. 7, 100 S.Ct. at 2538, n. 7). We also stated in Dement that:

When the defendant is denied the opportunity to cross-examine the declarant at trial, only evidence bearing sufficient "indicia of reliability" is admissible to assure "no material departure" from the purpose underlying the confrontation right to augment accuracy in the factfinding process. Reliability of evidence falling within a "firmly rooted" hearsay exception resting upon "solid foundations" may be inferred.

Id. at 681 (citation omitted) (quoting Roberts, 448 U.S. at 65, 66, 100 S.Ct. at 2538, 2539).

The trial court erred by applying a per se rule excluding incriminating out-of-court custodial declarations by co-defendants. The trial court should have applied the two-part test that the Supreme Court outlined in Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, and that we adopted in Dement, 661 P.2d at 680-81. After determining that Richard was unavailable to testify, Roberts, 448 U.S. at 66, 100 S.Ct. at 2539; Dement, 661 P.2d at 680, the court should have inquired whether Richard's statements contained sufficient "indicia of...