People v. Fincham

• Decision Date: 24 May 1990
• Docket Number: No. 87CA1248,87CA1248
• Citation: 799 P.2d 419
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rebecca FINCHAM, a/k/a Rebecca Fincham Davis, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 419

799 P.2d 419

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rebecca FINCHAM, a/k/a Rebecca Fincham Davis, Defendant-Appellant.

No. 87CA1248.

Colorado Court of Appeals,

Div. III.

May 24, 1990.

Rehearing Denied July 5, 1990.

Certiorari Denied Nov. 13, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Hope P. McGowan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Barbara S. Blackman, Chief Appellate Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge MARQUEZ.

Defendant, Rebecca Fincham, appeals the judgment of conviction entered upon jury verdicts finding her guilty of first degree murder after deliberation, first degree felony murder, conspiracy to commit first degree murder after deliberation, second degree kidnapping, conspiracy to commit second degree kidnapping, and accessory to crime. We affirm in part, vacate in part, and remand for further proceedings.

Defendant and her former husband, Gary Davis, were convicted and sentenced in separate trials in the kidnapping and murder of Virginia May. See People v. Davis, 794 P.2d 159 (Colo.1990). The record reflects that defendant was with Gary Davis during the time he took the victim from her home to the location where he eventually shot her several times. At issue at trial and on appeal are the existence and degree of defendant's complicity in these acts.

I.

Defendant contends that the admission into evidence of the statements of Gary Davis, who did not testify at her trial, violated her constitutional right of confrontation. Davis' statements, which were made to members of the sheriff's office, had been redacted to omit references to defendant. We conclude that any error was harmless beyond a reasonable doubt.

Whether a defendant's right to confront the witnesses against him or her has been violated requires a two-step analysis. First, the People must establish that the declarant is "unavailable." Second, the statement must bear indicia of reliability sufficient to make it trustworthy without subjecting the declarant to cross-examination. See Nunez v. People, 737 P.2d 422 (Colo.1987); People v. Dement, 661 P.2d 675 (Colo.1983).

The trial court found that, by virtue of having asserted his Fifth Amendment privilege against self-incrimination, Gary Davis, for purposes of CRE 804, was "unavailable." On appeal, this finding is not disputed, and therefore, for purposes of a Confrontation Clause analysis, we also conclude that Gary Davis was "unavailable." See United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); People v. Rosenthal, 670 P.2d 1254 (Colo.App.1983).

After determining that the declarant was "unavailable," the trial court should have inquired whether his statements contained sufficient "indicia of reliability" to overcome their presumptive unreliability. People v. Drake, 785 P.2d 1253 (1989). Instead, the trial court ruled only that the statements "having to do with [Gary] Davis himself" would be admissible since they were statements against his penal interest. The statement was redacted to omit references to the defendant. However, no express finding of reliability was made by the court with respect to Gary Davis' confession.

While it is true that reliability may be inferred where the evidence falls within a firmly rooted hearsay exception, People v. Dement, supra, a declaration against penal interest is too large a class for meaningful Confrontation Clause analysis. Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); see also People v. Drake, supra (trial court should make reliability finding even though statement was admissible under CRE 804(b)(3) as against his interest). However, we conclude that even if the absence of appropriate findings concerning the reliability of Davis' statements make their admission into evidence erroneous, such error was harmless beyond a reasonable doubt.

Here, defendant chose to testify at trial, and she admitted that she was present when the victim was placed in the car and that she drove the vehicle to the location where the victim's body was later found. Thus, by her own testimony, defendant related many of the same facts that were contained in Gary Davis' statement. And, references to defendant were excised from Gary Davis' statement. See People v. Rosenthal, supra. Accordingly, we are persuaded that any error in admitting the statement was harmless beyond a reasonable doubt. Cf. People v. Dement, supra; People v. Smith, 790 P.2d 862 (Colo.App.1989) (reversible error occurred in admission of two complicitors' statements that did not "interlock" on extent of defendant's culpability).

II.

Defendant next contends that the trial court erred in refusing to permit defense witnesses to testify regarding her dependent personality as it related to culpable mental states of the offenses charged and to available defenses. We disagree.

Defendant sought to present the testimony of two psychiatrists tending to establish that she exhibited a dependent personality disorder. The trial court disallowed the evidence on the ground that defendant had failed to raise the affirmative defense of impaired mental condition, which must be raised at arraignment or, upon good cause shown, at any time prior to trial. Section 16-8-103.5, C.R.S. (1986 Repl. Vol. 8A); People v. Low, 732 P.2d 622 (Colo.1987). We agree with the trial court that the testimony was inadmissible.

Defendant asserts that the evidence was introduced not to prove an impaired mental condition, but "to establish that she lacked the required culpable mental state due to her tendency to yield to persons perceived as in charge or to only weakly resist their actions." No offer of proof was given as to the distinction, and we are not persuaded by defendant's argument that this is different from the affirmative defense of impaired mental condition.

Section 16-8-102(2.7), C.R.S. (1986 Repl. Vol. 8A) defines impaired mental condition as:

"a condition of mind, caused by mental disease or defect, which does not constitute insanity but, nevertheless, prevents the person from forming a culpable mental state which is an essential element of a crime charged." (emphasis added)

Despite defendant's arguments to the contrary, the evidence sought to be introduced was evidence of mental condition rather than state of mind. Inasmuch as defendant waived this defense, her arguments for admissibility under the rules of evidence are also without merit.

III.

Defendant next argues that the trial court erred in admitting hearsay statements of the victim's children. We disagree.

Courts look primarily to the effect of a particular event upon the declarant and, if satisfied that the event was sufficient to cause adequate excitement, the inquiry is ended. The passage of time, though significant, is not conclusive on the question of admissibility, since the element of trustworthiness in the case of young children finds its source primarily in the lack of capacity to fabricate, rather than the lack of time to fabricate. Nor does the fact that some general questions preceded the hearsay declarations destroy their character as excited utterances. People in Interest of O.E.P., 654 P.2d 312 (Colo.1982).

Here, there is no question that the children's statements concerned a sufficiently startling event, the violent kidnapping of their mother from their home. The statements were made less than two hours after the event, and in response only to very general questions by their father. According to the father, upon making the statements, one of the children started to cry.

Moreover, the substance of the children's statements was corroborated by the defendant's own testimony at trial placing her at the victim's ranch with Gary Davis at the time of the abduction.

Under all the circumstances, we find no error in the admission of the children's statements. The trial court is in the preferred position to determine whether a particular event causes sufficient excitement in a declarant to render a statement admissible, People in Interest of O.E.P., supra, and we are satisfied that the trial court did not err in admitting the children's statements to their father. See CRE 803(2).

IV.

Defendant next contends that the trial court abused its discretion in failing to declare a mistrial or preclude further testimony when an advisory witness twice referred to inadmissible evidence. We disagree.

Although a trial court has broad discretion to declare a mistrial when it appears that because of irregularities in the proceeding either party will not receive a fair trial, People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978), declaration of a mistrial constitutes a drastic action and is warranted only when the prejudice to the accused is too substantial to be remedied by other means. People v. Abbott, 690 P.2d 1263 (Colo.1984).

The advisory witness' testimony that he went with the victim's children to the tool shed and "had them describe what happened" is not hearsay and is not at all inculpatory of defendant, and therefore, a finding of prejudice may not be based thereon.

As to the witness' testimony that in searching defendant's bedroom he noticed "there was a lot of sexual paraphernalia and magazines," the trial court found for the record that the witness' violation of the court's prior orders limiting certain testimony had not been aggravated or intentional and offered to give a cautionary instruction to the jury. The defense rejected that offer. The court also stated that it would consider defendant's request to prohibit the witness from testifying further if another violation occurred, and cautioned the witness not to mention sexual items.

Under all of the circumstances, we conclude that the two statements by the witness did not amount to...