People v. Newton

• Decision Date: 14 September 1998
• Docket Number: No. 97SC85,97SC85
• Citation: 966 P.2d 563
• Parties: 98 CJ C.A.R. 4880 The PEOPLE of the State of Colorado, Petitioner, v. Lester L. NEWTON, Respondent.
• Court: Colorado Supreme Court

Page 563

966 P.2d 563

98 CJ C.A.R. 4880

The PEOPLE of the State of Colorado, Petitioner, v. Lester L. NEWTON, Respondent.

No. 97SC85.

Supreme Court of Colorado.

Sept. 14, 1998.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russell, First Assistant Attorney General, Clemmie P. Engle, Senior Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner.

Gerash, Miranda & Gerash, P.C., Walter L. Gerash, Lia A. Fazzone, Denver, for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

Lester Newton, the defendant in this case, was tried in the Arapahoe County District Court (trial court) for his involvement in an armed robbery of a local grocery store in Aurora, Colorado. Ronald Riley, a co-defendant, was tried jointly with Newton. At trial, the People called Evonne Cummins, who was Newton's girlfriend at the time of the robbery, to testify about her knowledge of the robbery. Cummins refused to answer the prosecutor's questions, repeatedly invoking her right not to testify under the Fifth Amendment to the United States Constitution in the presence of the jury. After Cummins refused to testify, the People called a police detective to whom Cummins had provided a statement shortly after the robbery. In that statement, Cummins indicated her knowledge of the robbery and Newton's involvement in it. Over defense counsel's objection, the trial court allowed the People to question the detective regarding what Cummins had told him.

A jury convicted Newton of aggravated robbery, theft, and menacing. The court of appeals reversed Newton's conviction and remanded the case to the trial court for a new trial. See People v. Newton, 940 P.2d 1065 (Colo.App.1996). In its opinion, the court of appeals adopted the United States Supreme Court's interpretation of Fed.R.Evid. 804(b)(3) in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), for purposes of CRE 804(b)(3), which provides for the admission of a declarant's hearsay statement that is against the declarant's interest. ¹ The court of appeals explained that under Williamson, the trial court may admit only an individual remark that inculpates the declarant. Applying its construction of CRE 804(b)(3) to this case, the court of appeals held that Cummins's statement to the police detective was not admissible, with the possible exception of one remark.

We granted certiorari to review the court of appeals' adoption and application of the Williamson decision to CRE 804(b)(3). ² Although we affirm the court of appeals' judgment reversing Newton's convictions, we reject the court of appeals' interpretation of CRE 804(b)(3). We hold that under CRE 804(b)(3), a trial court should admit the precise statement against penal interest contained in a declarant's narrative as well as related, collaterally neutral statements. Admission of a declarant's statement against penal interest is subject to two limitations. First, a trial court should exclude any of the declarant's remarks that are so self-serving as to be unreliable. Second, if the trial court determines that the statement is unreliable because the declarant had a significant motivation to curry favorable treatment, then the entire narrative is inadmissible.

I.

On the morning of April 1, 1993, several men entered a King Soopers grocery store in Aurora and robbed a Wells Fargo guard who was delivering approximately $78,500 in cash and $7,800 in King Soopers gift certificates to the store. According to the Wells Fargo guard's trial testimony, three men wearing masks approached him as he was heading toward the office located in the store. At least two of the three suspects were armed. One suspect told the guard to drop the bag containing the funds and to raise his hands. Another suspect removed the guard's revolver and took the bank bag containing the funds.

Shortly after the robbery, the Aurora police located a vehicle matching witnesses' description of the getaway car at a nearby apartment complex. The police established a perimeter search of the complex and began searching individual apartments. Shervin Bunch, the lessee of apartment # 10, consented to a search of his apartment. The police found four persons inside apartment # 10: Shervin Bunch, Samuel Bunch (Shervin Bunch's brother), Lester Newton, and Evonne Cummins. In addition, the police found several handguns, approximately $2,700 in cash, several thousand dollars in King Soopers certificates, and bank bags inside the apartment.

Meanwhile, three men were seen fleeing from apartment # 10 through a window. The police subsequently found them in bushes close to the apartment and identified them as Ronald Riley, Gregory McCoy, and Tyree Bronson. In their search of McCoy, the police found approximately $20,000 stuffed in McCoy's pockets, socks, shorts, and shirt. The police also found a bag containing several thousand dollars in money orders on the roof above the suspects.

After questioning the four persons inside the apartment, the police arrested, processed, and then released Cummins and Newton. The police also arrested Riley, McCoy, and Bronson for aggravated robbery. In an affidavit in support of a warrantless arrest of Newton, an Aurora police officer stated that McCoy gave a confession after receiving his Miranda advisement. According to the officer, McCoy admitted his involvement in the robbery and stated that Newton, Riley, and Bronson were co-participants. As a result, the police then arrested Newton again for aggravated robbery. ³

Six days following the April 1, 1993 incident, Cummins, who was then 17 years old, came voluntarily to the Aurora police station with her mother. Detectives Parker and Callahan interviewed Cummins in the presence of her mother. According to Detective Parker's testimony, Cummins informed him about the following events that occurred on April 1. Cummins stated that she was at apartment # 10 on the morning of April 1. She heard a knock on the door and Newton and Bronson then entered the apartment, followed by Riley and McCoy. Newton, Bronson, Riley, and McCoy then went to the bedroom of the apartment. Shervin Bunch asked her what happened and she informed him that the four persons had just committed a robbery. Bunch then went into the bedroom for approximately five minutes. Newton, who had entered the bedroom wearing a black hooded sweatshirt and black sweatpants, came out of the bedroom wearing white boxer shorts and a white T-shirt. Cummins then went to take the trash out from the apartment and observed that the police had surrounded the building. She returned to the apartment and informed everyone that the police had surrounded the building. Newton told everyone "to be cool because the cops couldn't come in." When the police knocked at the door, Bronson, McCoy, and Riley went out the window and started running.

At trial, the People sought unsuccessfully to have Cummins testify about the statement she provided to Detective Parker. Although the People granted Cummins immunity, Cummins informed the court outside the presence of the jury that she would invoke her Fifth Amendment right not to testify. ⁴ The prosecution argued, and the trial court agreed, that the People could call Cummins to the witness stand and that if she refused to testify, the People could question Detective Parker about the statement Cummins made to him as a prior inconsistent statement under CRE 801(d)(1). ⁵ To establish a foundation for Detective Parker's testimony, the People asked Cummins leading questions about the statement she made to Detective Parker. Cummins refused to answer the People's questions, asserting her Fifth Amendment right not to testify a total of fifteen times in front of the jury. Immediately after questioning Cummins, the People called Detective Parker, who testified about the statement Cummins gave him.

During the course of the trial, the People advanced a theory of the case which differed significantly from that advanced by Newton. According to the People, although no witness saw more than three robbers together, the cumulative effect of the testimony demonstrated that there were four robbers involved. Specifically, the People argued that three persons went inside the King Soopers store, while a fourth person waited outside in the getaway car. The People asserted that no witness saw all four persons because passengers in the getaway car were "ducking down." By contrast, Newton argued that the evidence did not demonstrate that four persons were involved in the robbery and disputed the People's "duck down" argument.

Additionally, the evidence was conflicting as to when Newton arrived at apartment # 10. The People pointed to evidence showing that Newton arrived at the apartment after the robbery. In addition to Cummins's statement to Detective Parker, Shervin Bunch testified that he, Samuel Bunch, and Cummins were eating breakfast when Newton and three other men whom he did not know entered the apartment. According to Bunch, the four men proceeded to the bedroom. After a while, he entered the bedroom and saw that the four men had guns and money. Bunch asked for some of the money, which Newton gave him. Bunch also testified that Newton told him he "took care of business ." After Newton and Riley's counsel impeached Bunch, ⁶ Detective Parker testified that Bunch told him essentially the same story during an interview the day after the robbery. To dispute the People's theory, Newton's counsel highlighted contrary evidence indicating that Newton had been at the apartment all morning. To that effect, Bronson testified that only he and two other persons committed the robbery and that there was not a fourth person in the getaway car. According to Bronson, Newton was already in apartment # 10 when he and the other two robbers entered.

...