People v. Fuller, 86CA1157
| Decision Date | 10 November 1988 |
| Docket Number | No. 86CA1157,86CA1157 |
| Citation | 772 P.2d 636 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roy Henry FULLER, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Craig L. Truman, Denver, for defendant-appellant.
Defendant, Roy Henry Fuller, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree murder and conspiracy to commit first degree murder. The issue on appeal is whether certain statements made at trial were admissible under the residual exception to the hearsay rule found in CRE 804(b)(5). We reverse.
The victim, defendant's grandmother, was killed by defendant's girlfriend. The girlfriend testified at trial that, although she did the actual killing, defendant had planned and facilitated the murder. In support of her testimony, the prosecutor presented evidence to show hostility by defendant towards the victim. That evidence included testimony by two friends of the victim who related statements made by the victim that defendant had been violent with her in the past. One witness testified that the victim had said that defendant had tried to choke her. The other witness testified that the victim described how defendant had threatened her with a gun.
Defendant first contends that these statements were inadmissible as evidence of prior bad acts under CRE 404(b). We disagree.
Although not admissible to show bad character, evidence of prior violent acts towards the victim is admissible to show motive in homicide cases. CRE 404(b); Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978), cert. denied, 439 U.S. 1076, 99 S.Ct. 851, 59 L.Ed.2d 43 (1979). Therefore, CRE 404(b) does not bar admission of these statements.
Defendant next contends that, even if they were admissible under CRE 404(b), the statements were inadmissible hearsay under the procedures followed. We agree.
The trial court admitted these statements into evidence under CRE 804(b)(5), the residual exception to the hearsay rule. This rule provides for the admission of statements having "circumstantial guarantees of trustworthiness." However, five specific findings are required of the trial court when ruling on the admissibility of evidence under this rule.
First, it must find that the statement is reliable. Factors to be considered include the nature and character of the statement, the relationship of the parties, the probable motivation of the declarant in making the statement, and the circumstances under which the statement is made. The trustworthiness of the statement is then to be balanced against the necessity for admitting it into evidence. See 4 J. Weinstein & M. Berger, Weinstein's Evidence, 804(b)(5) (1988).
The trial court must also find that the statement is material, has probative value exceeding that of any other available evidence, serves the purposes of the evidentiary rules in the interest of justice, and that proper notice was given. CRE 804(b)(5). No such findings were made on this record.
Despite such defect, in cases where the basis of the ruling is obvious and the reviewing court can ascertain from the record that the requirements of the rule were met, it may uphold the admission of such evidence without specific factual findings. Oldsen v. People, 732 P.2d 1132 (Colo.1986). However, unlike the circumstances in Oldsen, nothing in the record is indicative of the trustworthiness of either statement.
Furthermore, the Senate committee report on the comparable federal hearsay exception, upon which our rule is based, specifies that this exception should be used only in rare and exceptional circumstances. See Weinstein's Evidence, supra. We agree with that policy. We therefore hold that the admission of both statements, without the...
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People v. Fuller
...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 CR......
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Estate of Walker, In re
...girlfriend actually killed the grandmother, but she testified that he had planned and facilitated the murder. See People v. Fuller, 772 P.2d 636 (Colo.App.1988), rev'd on other grounds, supra. Arguing that because he did not personally commit the homicide, Fuller contends that he cannot be ......
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People v. Bowers
...establish those fundamental requirements by a preponderance of the evidence. Oldsen v. People, 732 P.2d 1132 (Colo.1986); People v. Fuller, 772 P.2d 636 (Colo.App.1988). The determination whether such statements are admissible is fact-specific in nature and rests with the trial court. See C......