People v. Fry

Citation92 P.3d 970
Decision Date28 June 2004
Docket NumberNo. 03SC98.,03SC98.
PartiesThe PEOPLE of the State of Colorado, Petitioner v. Richard Dee FRY, Respondent.
CourtSupreme Court of Colorado

Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner.

David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

I. Introduction

In this case, we consider whether the preliminary hearing testimony of an unavailable witness is admissible at trial. In accordance with the United States Supreme Court's recent decision in Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we hold that previous testimony is admissible only if the witness is unavailable and the defendant had an adequate prior opportunity for cross-examination. Because preliminary hearings in Colorado do not present an adequate opportunity for cross-examination, we find that the trial court erred in admitting preliminary hearing testimony. The error in this case was not harmless. Therefore, we affirm the court of appeals' decision remanding the case for a new trial.

II. Facts and Procedure

The victim in this case, Darla Fischer, died as a result of complications related to a cerebral hemorrhage that was caused by an impact to the head. At trial, the parties disputed whether a fall or an assault caused the injury. A jury convicted Respondent Richard Fry, Fischer's boyfriend at the time, of second degree assault and second degree murder for Fischer's death.

At the preliminary hearing, the prosecution called Fry's uncle, Arlo Gene Burgess, to testify. Burgess testified that about two days after Fischer was hospitalized, Fry telephoned him and stated that "Darla [Fischer] was in the hospital and that he had put her there." Burgess further stated that Fry had told him he had hit Fischer and that he thought she had brain damage. However, Fry telephoned him again about two weeks later, Burgess testified, and told him that he had "no hand in it, that somebody else had done that."

Defense counsel did not cross-examine Burgess at the preliminary hearing. Burgess died before trial.

After Burgess died, Fry's counsel filed a Motion to Exclude Hearsay Testimony of Arlo Gene Burgess. Fry argued that Burgess's preliminary hearing testimony was inadmissible at trial pursuant to the Confrontation Clause in article II, section 16, of the Colorado Constitution, and this court's decision in People v. Smith, 198 Colo. 120, 597 P.2d 204 (1979). Moreover, the defense contended that Burgess had a motive to lie because he had allegedly been assaulted by Fry and because he had been intimately involved with Fry's girlfriend, Fischer. The prosecution countered that the testimony was admissible under the residual hearsay exception because the defense had an opportunity to cross-examine Burgess at the preliminary hearing. Additionally, the prosecution asserted that the testimony was reliable because Burgess had no motive to lie.

The trial court denied the motion, ruling that Burgess's testimony was admissible under the residual hearsay exception, C.R.E. 807. The trial court reasoned that although People v. Smith prohibits the use of preliminary hearing testimony under C.R.E. 804, such testimony can be admitted pursuant to another hearsay exception which meets the two part test of unavailability and reliability as set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and People v. Dement, 661 P.2d 675 (Colo.1983). The case then went to trial and Fry was convicted.

The court of appeals reversed. People v. Fry, 74 P.3d 360 (Colo.App.2002). It stated that Smith established a bright-line rule prohibiting the use of preliminary hearing testimony of an unavailable witness. Id. at 364. Further, the court of appeals reasoned that although Smith was decided before Roberts and Dement, it "essentially determined that preliminary hearing testimony does not possess the requisite trustworthiness" to satisfy the reliability prong of the Roberts test. Id. Thus, the court of appeals found that the testimony was improperly admitted. Id. Additionally, the court of appeals held that the error was not harmless beyond a reasonable doubt. Id. at 365. The court noted that the prosecution relied heavily on Burgess's testimony and that the other incriminating evidence was ambiguous and insufficient to support the conviction. Id. The court of appeals therefore remanded the case for a new trial. Id.

We granted certiorari to review two questions: first, whether Smith should be read to categorically exclude all preliminary hearing testimony, even when that testimony meets the two-part test of unavailability and reliability and would be admissible under a hearsay exception other than C.R.E. 804, the exception discussed in Smith; and second, whether any error was harmless beyond a reasonable doubt.1 In the time between briefing and oral argument in this case, however, the United States Supreme Court decided Crawford v. Washington, which overruled Roberts. Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Court held that testimonial statements of an unavailable witness are not admissible unless the defendant had a prior opportunity for cross-examination. Consequently, we now review the questions before us in light of Crawford.

III. Confrontation Clause

To answer the questions before us, we first briefly review the purposes and history behind the Confrontation Clause. Next, we examine the progression of United States Supreme Court cases analyzing the Confrontation Clause and our own interpretation and application of those cases. We then outline the nature and purpose of preliminary hearings in Colorado and how they impact our Confrontation Clause analysis. We then apply this analysis to the case before us and find that the use of a transcript from the preliminary hearing as evidence at trial violated Fry's right to confront the witnesses against him. Finally, we review the court of appeals' decision to determine whether the error in this case was harmless. We agree with the court of appeals' decision that the prosecution did not show beyond a reasonable doubt that the error was harmless. Thus, we affirm the court of appeals decision remanding the case for a new trial.

A. Confrontation Clause—Purposes and History

A defendant's right to confront the witnesses against him is guaranteed by both the Sixth Amendment of the United States Constitution and article II, section 16 of the Colorado Constitution.2 Even without our state provision guaranteeing this right, the United States Supreme Court has held that "this bedrock procedural guarantee applies to both federal and state prosecutions" through the Fourteenth Amendment. Crawford v. Washington, ___ U.S. ___, ___, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)).

The history behind the Confrontation Clause is discussed extensively in Crawford, ___ U.S. ___, ___ - ___, 124 S.Ct. 1354, 1359-64, 158 L.Ed.2d 177. Although we do not discuss it at length here, we review the Clause's history briefly to illustrate the importance of the right to confrontation in our system of law.

The concept that an accused has the right to confront the witnesses against him dates back to Roman times, but was incorporated into English law in the 1600s. Crawford, ___ U.S. ___, ___ - ___, 124 S.Ct. 1354, 1359-61, 158 L.Ed.2d 177. English courts developed the right, allowing out-of-court testimony only if the witness was unable to testify in person. Id. at 1360-61. English courts further developed the common law to require that statements made before trial were admissible only if the accused had a prior opportunity to cross-examine the witness. Id.

Although several state constitutions included a right of confrontation, the United States Constitution did not originally include that right. Id. at 1362. Following criticism regarding the omission, the First Congress included the right in the Sixth Amendment. Id. The People of Colorado included a right to confrontation of witnesses against an accused in Colorado's original constitution and it has remained unchanged since that time. See Colo. Const. art. II, § 16. The purposes behind both the federal and state Confrontation Clauses are well articulated. We have stated that the Confrontation Clause is designed to ensure that convictions are not obtained through the use of ex parte affidavits. People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300 (1976); see also Crawford, ___ U.S. ___, ___, 124 S.Ct. 1354, 1363-64,158 L.Ed.2d 177. We have recognized that testimony is much more reliable when it is given under oath at trial where the witness can be cross-examined and the jury may observe the witness's demeanor. People v. Dement, 661 P.2d 675, 680 (Colo.1983). Thus, although by necessity exceptions to the right of confrontation must exist, we have continually maintained the importance of that right. Accordingly, we must protect the most obvious manifestation of that right-the opportunity for cross-examination. See Pointer, 380 U.S. at 406-07,

85 S.Ct. 1065.

In sum, the right of an accused to confront the witnesses against him has been regarded as a fundamental right for hundreds of years. It was included in both the United States and Colorado Constitutions to insure that persons would not be convicted on the basis of ex parte testimony and without the benefit of cross-examination. This right remains crucial to our adversarial system of law.

B. Confrontation Clause Case Law

We first examine the history of the U.S. Supreme Court's treatment of the Confrontation Clause. The Sixth Amendment of the United States Constitution applies to state prosecutions through the Fourteenth Amendment and we have followed U.S. Supreme Court...

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