People v. Farrell, No. 97CA2236.

• Decision Date: 17 February 2000
• Docket Number: No. 97CA2236.
• Citation: 10 P.3d 672
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Antonio S. FARRELL, Defendant-Appellant.
• Court: Colorado Court of Appeals

10 P.3d 672

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Antonio S. FARRELL, Defendant-Appellant.

No. 97CA2236.

Colorado Court of Appeals, Div. IV.

February 17, 2000.

Certiorari Granted October 10, 2000.

Ken Salazar, Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge VOGT.

Defendant, Antonio S. Farrell, appeals the judgment of conviction entered upon jury verdicts finding him guilty of murder in the first degree (intentional/deliberate), murder in the first degree (felony murder), robbery of an at-risk adult, aggravated robbery, second degree kidnapping, two counts of second degree burglary, two counts of conspiracy, first degree criminal trespass, and theft. He also appeals the sentences imposed. We reverse and remand for a new trial.

Defendant and his sixteen-year-old companion (codefendant) were arrested by police investigating the disappearance of an elderly woman. The codefendant told police that he and defendant had kidnapped the woman, driven her to an isolated rural area, tied her to a concrete structure, piled heavy objects on top of her, and left her. According to the codefendant, the two youths then drove to the victim's home and broke in. Over the next three days, they ransacked the house and took jewelry, money, and other valuables. They also broke into the garage of another house in the area and stole guns.

Based on the codefendant's description of where the woman had been left, the police went to the site and discovered her body. Defendant and the codefendant were charged with first degree murder and other offenses in connection with her death. In addition, the two were charged with burglary and related offenses in connection with the theft of guns from the second victim's garage.

Defendant and the codefendant were tried separately, and the codefendant had already been convicted by the time of defendant's trial. The jury found defendant guilty of the charged offenses relating to both victims. It rejected his affirmative defense of insanity.

For the offenses involving the woman, defendant received a sentence of life without the possibility of parole on the merged murder counts, along with concurrent sentences for kidnapping, aggravated robbery, second degree burglary, and conspiracy, and a consecutive 32-year sentence for the robbery of an at-risk adult. On the convictions for the offenses against the second victim, the court imposed concurrent sentences for conspiracy, first degree criminal trespass, and theft, and a consecutive 24-year sentence for second degree burglary.

I.

Defendant contends that, under controlling United States Supreme Court and Colorado Supreme Court decisions, the admission against him of his codefendant's statement to the police violated his constitutional right of confrontation and requires reversal of his conviction. We agree.

Prior to trial, defendant filed a motion in limine to prevent the prosecutor from introducing the statement into evidence. In the statement, the codefendant gave a detailed account of both his and defendant's involvement in the charged offenses.

After reviewing the statement and hearing argument, the court ruled that the statement would be admitted. It found that the statement was against the codefendant's interest and that no reasonable person in his position would have made the statement unless he believed it to be true. The court further noted, without elaboration, that the statement's reliability had "corroboration . . . [as] to the basics."

In accordance with the court's ruling, the jury was shown a videotape of the police interview with the codefendant. In addition, each of the jurors received a copy of the 91-page transcript of the interview.

A.

Both the United States Constitution and the Colorado Constitution guarantee defendants in criminal cases the right to confront and cross-examine witnesses. U.S. Const. amend. VI, XIV; Colo. Const. art. II, § 16. The United States Supreme Court has recognized that this right is "uniquely threatened" when an accomplice's confession is sought to be introduced against such a defendant without the benefit of cross-examination. Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526 (1986); see also People v. Dement, 661 P.2d 675 (Colo.1983).

After the trial in this case, the Supreme Court announced Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), in which it concluded that the admission of a non-testifying accomplice's confession violated the defendant's Sixth Amendment right to be confronted with the witnesses against him.

In Lilly, the Virginia Supreme Court — like the trial court in this case — had concluded that the challenged statements were reliable, and thus admissible, because (1) the speaker was implicating himself as a participant in crimes and (2) elements of his statements were independently corroborated by other evidence. The Supreme Court reversed. After reaffirming its longstanding recognition that accomplice statements that shift or spread the blame to a criminal defendant are inherently unreliable, the Court acknowledged that the presumption of unreliability may be rebutted, but continued:

Nonetheless, the historical underpinnings of the Confrontation Clause and the sweep of our prior confrontation cases offer one cogent reminder: It is highly unlikely that the presumptive unreliability that attaches to accomplices' confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions. . . [where] the government is involved in the statements' production, and when the statements describe past events and have not been subjected to adversarial testing.

Lilly v. Virginia, supra, 527 U.S. at 137, 119 S.Ct. at 1900, 144 L.Ed.2d at 135.

Lilly is a plurality opinion. Thus, the People argue that its precedential effect is limited. However, all the justices in Lilly agreed that reversal was required; and our review of the various concurring opinions, as well as the other Supreme Court cases on which Lilly relies, leads us to conclude that the propositions for which it is cited here represent the opinion of the majority of the Court. Thus, Lilly is binding on us.

After the trial in this case, but before Lilly, the Colorado Supreme Court also issued two decisions addressing the issue presented here.

In People v. Newton, 966 P.2d 563 (Colo.1998), the court outlined a three-part test that must be satisfied before a statement inculpating a defendant may be admitted: (1) the witness must be unavailable, as required by CRE 804(a); (2) the statement must tend to subject the declarant to criminal liability and must be the kind of statement that a reasonable person in the declarant's position would not have made unless the person believed it to be true; and (3) the People must show by a preponderance of the evidence that corroborating circumstances demonstrate the trustworthiness of the statement.

As to the third requirement, the supreme court stated — consistent with Lilly — that a trial court should limit its analysis to the circumstances surrounding the making of the statement and may not rely on other independent evidence that also implicates the defendant. In so holding, the court noted that its prior decision permitting consideration of independent corroborating evidence had been "effectively overruled" by Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). People v. Newton, supra, 966 P.2d at 575 n. 15.

Appropriate factors for a court to consider in conducting the trustworthiness inquiry include: where and when the statement was made, what prompted the statement, how the statement was made, and what the statement contained. People v. Newton, supra.

Finally, in Blecha v. People, 962 P.2d 931 (Colo.1998), the supreme court held that the admission of a codefendant's hearsay statement in a murder prosecution violated the defendant's right to confrontation and constituted constitutional error, but that the error was harmless beyond a reasonable doubt.

Under these cases, the codefendant's statement in this case was not admissible. Although, as the trial court found, the statement was clearly against the codefendant's penal interest, this fact was not sufficient under Lilly to establish reliability. See Lilly v. Virginia, 527 U.S. at 138-139, 119 S.Ct. at 1901, 144 L.Ed.2d at 135-36 ("The Commonwealth's next proffered basis for reliability — that[the accomplice] knew he was exposing himself to criminal liability — merely restates the fact that portions of his statements were technically against penal interest. . . . `[T]hat a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self inculpatory parts'").

Nor was it sufficient that other evidence corroborated portions of the statement. See Lilly v. Virginia, supra, 527 U.S. at 138, 119 S.Ct. at 1901, 144 L.Ed.2d at 135, quoting Idaho v. Wright, supra ("[t]o be admissible under the Confrontation Clause . . . hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial"); People v. Newton, supra. Although the grounds relied on by the trial court were thus insufficient to permit admission of the statement, we must consider whether the statement was nevertheless admissible because the circumstances surrounding the making of the statement demonstrated its trustworthiness and reliability. See Lilly v. Virginia, supra (reviewing courts should independently review whether the government's proffered guarantees of trustworthiness satisfied the demands of the Confrontation Clause). We conclude that the statement was not admissible on this basis.

The...