People v. Fuller

• Decision Date: 05 March 1990
• Docket Number: No. 89SC19,89SC19
• Citation: 788 P.2d 741
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Roy Henry FULLER, Respondent.
• Court: Colorado Supreme Court

Page 741

788 P.2d 741

The PEOPLE of the State of Colorado, Petitioner, v. Roy Henry FULLER, Respondent.

No. 89SC19.

Supreme Court of Colorado En Banc.

March 5, 1990.

Rehearing Denied April 2, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Clement P. Engle, Asst. Atty. Gen., Denver, for petitioner.

Craig L. Truman, P.C., Craig L. Truman, Denver, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

We granted the People's petition for certiorari in order to review the court of appeals decision in People v. Fuller, 772 P.2d 636 (Colo.App.1988). The court of appeals held that the district court committed reversible error by admitting two hearsay statements under CRE 804(b)(5), 7B C.R.S. (Supp.1989), without making the five findings identified in CRE 804(b)(5). Id. at 637. We reverse.

I.

On November 18, 1984, the People charged defendant Roy Henry Fuller with first degree murder, § 18-3-102, 8B C.R.S. (1986), and conspiracy to commit first degree murder, § 18-2-201, 8B C.R.S. (1986), and asked for the mandatory sentence for violent crimes authorized by section 16-11-309, 8A C.R.S. (1986), ¹ in connection with the death of the defendant's grandmother Helen Walker. At trial the People sought to prove that the defendant arranged to have his friend Stacy Kelly kill his grandmother. The People presented several witnesses who testified that the defendant disliked his grandmother. Jane Nunez, one of the defendant's friends, testified that the defendant said that he did not care for his grandmother. Robert Witholder, a friend of Stacy Kelly, testified that on several occasions the defendant told him he was "sick of his grandmother[ ] prying into his business." Ervin Hughes, a police officer who interviewed the defendant, testified that the defendant said he and his grandmother had "numerous loud arguments" which the neighbors might have heard.

Two other witnesses, Elsie Paddock and Dolores Story, testified about the defendant's hostility toward his grandmother, and it is their testimony which is the subject of this case. Elsie Paddock was a neighbor and close friend of the victim. She testified that in April of 1984 Helen Walker had surgery for a detached retina. The district attorney asked Mrs. Paddock if she knew what happened to cause Mrs. Walker's detached retina. The defendant objected on hearsay grounds. ² The district court ruled that Mrs. Paddock's testimony would be hearsay, ³ but was admissible under the hearsay exception established by CRE 803(24), 7B C.R.S. (Supp.1989). ⁴ Mrs. Paddock then gave the following testimony:

Q ... Mrs. Paddock, did Helen Walker tell you what caused her to have the detached retina?

A Yes, she did.

Q What did she tell you?

A That Roy had choked her. She told me this about two weeks prior to her death.

Dolores Story lived next door to Helen Walker from 1958 to 1984. She gave the following testimony without any objection from the defendant:

Q During the year 1984 on one or more occasions did [Mrs. Walker] have occasion to come over and talk to you about her grandson?

A Yes, she did.

Q Did she have any complaints?

A Yes, he had a gun, a loaded gun in her house and he threatened her with it a number of times.

Q Did she indicate what he was threatening her about or why he did this?

A No.

Q When you observed her was she fearful?

A Yes, she was. But she would stay at my house for a short time and go right back into the house.

On cross-examination Mrs. Story gave the following testimony:

Q Do you consider yourself to be one of Helen Walker's best friends?

A Yes, I was.

Q You've known her for about twenty years or so?

A Right.

Q Did you share personal information with her? Did she share personal information with you?

A Some, yes.

Q If Mrs. Walker was upset or troubled would it be fair to say you were one of the people she would talk to about that?

A Yes, she came over to my house a number of times because Roy had a gun in the house and had threatened her with it.

On appeal the defendant contended that the district court erred in admitting the hearsay testimony of Mrs. Paddock and Mrs. Story. The court of appeals held that the statements of Mrs. Paddock and Mrs. Story were inadmissible because the district court failed to make the findings required by CRE 804(b)(5). The court of appeals also held that the district court's "failure to make the requisite findings violated the defendant's constitutional right to confrontation." Fuller, 772 P.2d at 637. We conclude that the district court's failure to make specific findings under CRE 804(b)(5) was not reversible error in this case.

II.

In this case we must determine whether the district court committed reversible error in admitting the hearsay statements of Mrs. Paddock and Mrs. Story. Because the defendant objected on hearsay grounds to the testimony of Mrs. Paddock, we consider first whether the trial court erred in admitting her testimony without making findings on the record that the statements met the requirements of CRE 804(b)(5). We analyze the admission of Mrs. Story's testimony separately in part IV. because the defendant raised no contemporaneous objection to her testimony.

CRE 803(24) and CRE 804(b)(5), which are identical, codify the "residual exception" to the hearsay rule. See W.C.L., Jr. v. People, 685 P.2d 176, 182 (Colo.1984). CRE 803(24) applies "even though the declarant is available as a witness." CRE 804(b)(5) applies if the declarant is unavailable as a witness.

CRE 804(b)(5) provides that the following is not excluded by the hearsay rule if the declarant is unavailable as a witness:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

The five prerequisites to admissibility under CRE 804(b)(5) are that: the statement is supported by circumstantial guarantees of trustworthiness; the statement is offered as evidence of material facts; the statement is more probative on the points for which it is offered than any other evidence which could be reasonably procured; the general purposes of the rules of evidence and the interests of justice are best served by the admission of the statement; and the adverse party had adequate notice in advance of trial of the intention of the proponent of the statement to offer it into evidence. CRE 804(b)(5); People v. District Court, 776 P.2d 1083, 1089 & 1089 n. 7 (Colo.1989); Oldsen v. People, 732 P.2d 1132, 1136-37 (Colo.1986); see also 4 J. Weinstein & M. Berger, Weinstein's Evidence § 803(24) at 803-373 to 803-381 (1988). Trial courts have "a considerable measure of discretion" in applying this exception to the hearsay rule. Huff, 609 F.2d at 291; cf. People v. District Court, 776 P.2d at 1090.

In this case the district court admitted Mrs. Paddock's hearsay testimony with the statement that "I think under 803(24) I'll let it in." Thus there is no record of the district court's application of the five requirements of CRE 804(b)(5) to the hearsay testimony of Mrs. Paddock.

Before admitting a hearsay statement under CRE 804(b)(5) the trial court should establish that the statement satisfies the five prerequisites to admissibility explicitly identified in the rule. Oldsen, 732 P.2d at 1136-37; see also Huff, 609 F.2d at 292-95. Our desire to have trial courts make adequate findings on the record before admitting hearsay statements under CRE 804(b)(5) stems from our interest in limiting the application of the residual exception to the hearsay rule. See Huff, 609 F.2d at 291. We therefore hold that the district court erred in failing to make findings on the record that Mrs. Paddock's hearsay statements satisfied the requirements of CRE 804(b)(5).

III.

Next we address whether the district court's error in failing to make on-the-record findings under CRE 804(b)(5) with regard to the testimony of Mrs. Paddock warrants a reversal of the defendant's conviction. We conclude that the defendant's conviction must be affirmed because the district court's error was harmless.

A.

We first conclude that the trial court's error was harmless because under CRE 804(b)(5) Mrs. Paddock's testimony was admissible. Federal courts have analyzed the admissibility of hearsay statements under Fed.R.Evid. 803(24) and Fed.R.Evid. 804(b)(5) in cases in which trial courts failed to make on-the-record findings, or based their rulings on other grounds. ⁵ The Seventh Circuit in Huff, 609 F.2d at 292-95, noted that the trial court did not mention the residual exception to the hearsay rule when it held the statement at issue to be inadmissible. The court stated that "[u]nder these circumstances, we have little choice except to attempt to replicate the exercise of discretion that would be made by a trial judge in making the ruling." Id.; see also Polansky v. CNA Ins. Co., 852 F.2d 626, 631 (1st Cir.1988) (analyzing requirements of Fed.R.Evid. 803(24) on hypothesis that hearsay letter was admitted by trial court under that section); Furtado v. Bishop, 604 F.2d 80, 90-91 (1st Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980). ⁶

In Oldsen v. People, 732 P.2d at 1136-37, we...