People v. Moore, 82CA1067

• Citation: 693 P.2d 388
• Decision Date: 11 October 1984
• Docket Number: No. 82CA1067,82CA1067
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William P. MOORE, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 388

693 P.2d 388

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William P. MOORE, Defendant-Appellant.

No. 82CA1067.

Colorado Court of Appeals,

Div. I.

Oct. 11, 1984.

Rehearing Denied Nov. 8, 1984.

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

David F. Vela, Colorado State Public Defender, Rachel A. Bellis, Gerald E. Piper, Deputy State Public Defenders, Denver, for defendant-appellant.

STERNBERG, Judge.

Following a jury trial, the defendant, William P. Moore, was convicted of attempted aggravated robbery, conspiracy to commit aggravated robbery, and felony menacing. Moore appeals, alleging that the admission of a hearsay statement of a co-defendant who was unavailable as a witness violated his right of confrontation, and that the trial court erred by improperly admitting evidence of a "similar transaction." We affirm.

In March 1982, Frank Sandoval and Charles Dickerson, attempted the armed robbery of a bank, in the course of which Sandoval was shot by a police officer. Three days later, while in police custody, Sandoval gave an inculpatory statement to the police which also implicated Moore and another person, one Taylor. Although it is undisputed that Moore drove Sandoval to the bank, he and Taylor maintained they were unaware of the planned robbery and had not aided in planning and executing the attempt. Sandoval's statement is the only direct evidence which contradicts Moore's position.

Sandoval refused to testify at trial, despite the grant of transactional immunity and the issuance of a court order compelling him to testify. The prosecution then sought to introduce Sandoval's statement through the police officer who had recorded the statement. Over defendant's objection, the trial court admitted the statement, ruling that Sandoval was unavailable as a witness under CRE 804(a)(2), and the statement was admissible as a "statement against interest" under CRE 804(b)(3).

I.

Moore contends that the admission of Sandoval's statement violated his constitutional right of confrontation. We disagree.

The confrontation right and hearsay rules stem from the same roots and are designed to protect similar interests, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); People v. Dement, 661 P.2d 675 (Colo.1983), but evidence admissible under a hearsay exception is not necessarily sufficient to satisfy the right of confrontation. Therefore, both the United States and Colorado Supreme Courts apply a two-part test on a case-by-case basis when admission of hearsay evidence is challenged on constitutional grounds. Ohio v. Roberts, supra; People v. Dement, supra.

The first step is to determine whether the hearsay declarant was unavailable. Moore concedes that Sandoval was unavailable.

The second step is to determine whether the hearsay evidence bears sufficient indicia of reliability to ensure accuracy in the fact finding process; such reliability may be inferred if the evidence falls within a firmly rooted hearsay exception.

Here, the statement falls within the "statement against penal interest" exception to the hearsay rule set out in CRE 804(b)(3) which allows evidence to be admitted as a statement against interest when the declarant is unavailable, the statement tends to subject the declarant to criminal liability, and a reasonable person in declarant's position would not have made the statement unless he believed it to be true. Sandoval's statement did tend to subject him to criminal liability, because it would have been probative in a trial against him. United States v. Garris, 616 F.2d 626 (2d Cir.1980), cert. denied, 447 U.S. 926, 100 S.Ct. 3021, 65 L.Ed.2d 1119 (1980).

However, since Sandoval's statement inculpates one besides the declarant, i.e., Moore, to be admissible the People must show by a preponderance of the evidence that the attendant circumstances confirm the trustworthiness of the statement. United States v. Katsougrakis, 715 F.2d 769 (2d Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984). Here, because the circumstances indicate no reason to believe that Sandoval thought he would be helping himself by inculpating others, and the statement clearly inculpates him and could have been used against him at trial, we conclude the requisite trustworthiness of the statement was shown. See United States v. Garris, supra.

Moore, however, argues that although the statement ostensibly inculpates Sandoval, it lacks sufficient reliability because Sandoval was in custody when the statement was given. In support of this contention, Moore cites several federal cases construing Fed.R.Evid. 804(b)(3), holding custodial statements inadmissible because they were unreliable. See, e.g., Olson v. Green, 668 F.2d 421 (8th Cir.1982), cert. denied, 456 U.S. 1009, 102 S.Ct. 2303, 73 L.Ed.2d 1305 (1982). However, whether the declarant was in police custody when the statement was given is but one...