People v. Newton

• Decision Date: 29 November 1996
• Docket Number: No. 94CA2073,94CA2073
• Citation: 940 P.2d 1065
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lester L. NEWTON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1065

940 P.2d 1065

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lester L. NEWTON, Defendant-Appellant.

No. 94CA2073.

Colorado Court of Appeals Div. II.

Nov. 29, 1996.

Rehearing Denied Dec. 27, 1996.

Certiorari Granted Aug. 4, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, M. Catherine Duba, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Gerash, Robinson & Miranda, P.C., Walter L. Gerash, Denver, for Defendant-Appellant.

Opinion by Judge CRISWELL.

Defendant, Lester L. Newton, appeals from a judgment of conviction entered on a jury verdict finding him guilty of two counts of aggravated robbery, one count of theft over $15,000, and three counts of menacing. We reverse his convictions and remand for a new trial.

In 1993, an armored truck guard was robbed while making a delivery. Eyewitnesses saw no more than three perpetrators, all of whom were masked. They were described as wearing dark sweatsuits.

After the robbery, based on witness descriptions of the perpetrators' vehicle and direction of travel, a detective later located a vehicle matching the description at a nearby apartment complex parking lot. Police then surrounded the building and began a door-to-door search.

Upon entering one apartment, the police found four people present: the defendant; the resident of the apartment, Shervin Bunch; his brother, Samuel Bunch; and the defendant's girlfriend, Evonne Cummins. At that time, defendant identified himself as Brian Brown.

Immediately before the police entered the apartment, three other people had left through a window; they tried to climb onto the roof, but were found hiding in nearby bushes. The police conducted a search of the apartment, and evidence of the robbery was found there, on the roof, and in the nearby bushes. The defendant was charged as one of the robbers.

Six days later, defendant's girlfriend made a narrative statement to a detective concerning the robbery. At the prosecution's request, she was later granted testimonial immunity.

Although the girlfriend's attorney informed the court that she would persist in exercising her Fifth Amendment privilege against self-incrimination, and although she made it clear she would continue doing so at three different hearings, the court allowed the prosecution to call her as a witness at trial. The court then allowed the prosecutor to ask the girlfriend a series of leading questions about her statement to the detective. She refused to respond to each question on the basis of her privilege. Thereafter, the court allowed the detective to testify with respect to the girlfriend's statement based on its conclusion that such statement was inconsistent with her prior testimony.

Shervin Bunch and one of the confessed robbers, who was offered leniency in exchange for his testimony, testified at trial. The confessed robber admitted his involvement, but said defendant had not been a participant.

In contrast, Shervin Bunch testified that defendant came to the apartment with three other people, all wearing black and grey sweatsuits, that Bunch entered the bedroom in which the four were present and observed lots of money, and that the defendant agreed to give him some money. However, this witness did not directly testify that defendant was involved in the robbery.

I.

Defendant asserts that the trial court erred by permitting the prosecution to call the girlfriend and to question her repeatedly in the jury's presence, knowing that she would assert her Fifth Amendment right to remain silent. The Attorney General has conceded error in this respect, and we conclude that such concession is well warranted.

A party may not call a witness to testify if that party knows the witness will exercise her privilege against self incrimination. People v. Dikeman, 192 Colo. 1, 555 P.2d 519 (1976). And, this prohibition applies whether or not the claim of privilege is proper. State v. Corrales, 138 Ariz. 583, 676 P.2d 615 (1983); Hankerson v. State, 347 So.2d 744 (Fla.Dist.Ct.App.1977); see also People v. Scheidt, 182 Colo. 374, 513 P.2d 446 (1973) (prosecutor's behavior not prejudicial because, although the claimed privilege was invalid, the prosecutor did not continue to put forth questions that would improperly develop his case before the jury).

The rationale for the rule is that, because of the high courtroom drama and odium surrounding a claim of privilege, questioning of a witness asserting such a claim before the jury has the effect of prejudicing the accused by creating an unfair inference of guilt. See People v. Dikeman, supra.

If the court finds the claim of privilege to be invalid, it should consider contempt penalties against the witness, rather than allowing questioning that could be prejudicial to the defendant. People v. Poma, 96 Mich.App. 726, 294 N.W.2d 221 (1980).

II.

The People argue, nevertheless, that such error was not prejudicial because no inference could have been drawn from the girlfriend's refusal to testify other than that she had made the statements which the detective later detailed; that the detective's testimony was properly admitted; and that both the girlfriend's refusal to testify and the testimony of the detective were merely cumulative of other evidence. We disagree.

A.

We are convinced that the girlfriend's statement to the detective was not properly admitted.

At trial, the court admitted the detective's testimony on the basis that the girlfriend's statement to him fell under the prior inconsistent statement exception to the hearsay rule. It found, in effect, that the girlfriend's refusal to answer questions at trial was inconsistent with her earlier statement to the detective.

However, because the girlfriend did not give testimony when she refused to answer the prosecutor's questions, she gave no testimony with which any prior statement could be inconsistent. See CRE 801(d)(1)(A); People v. Rios, 163 Cal.App.3d 852, 210 Cal.Rptr. 271 (1985). Hence, the trial court's ruling was erroneous.

The People again concede that the detective's testimony was not admissible on the basis that the trial court admitted it. However, they contend that the statement was properly received as a statement against penal interest. We are not persuaded.

The statement against penal interest exception to the hearsay rule, described in CRE 804(b)(3), allows an out-of-court statement to be admitted if the declarant is unavailable and the statement tends to subject the declarant to criminal liability such that a reasonable person in the declarant's position would not have made the statement unless she believed it to be true. A statement tends to subject a person to criminal liability if the statement would have been probative in a trial against her. People v. Moore, 693 P.2d 388 (Colo.App.1984).

However, if such a statement inculpates a person other than the declarant, it must also be demonstrated, by a preponderance of the evidence, that attendant circumstances confirm the statement's trustworthiness. People v. Moore, supra; see 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).

In Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), the Supreme Court recently analyzed the identical federal counterpart to CRE 804(b)(3). There, the court adopted a narrow view of the exception created by the federal rule and concluded that only those declarations within a narrative that are individually self-inculpatory are admissible under that rule. Specifically, that court determined that, when ruling on a narrative statement, such as the girlfriend's here, a trial court must not assume that a statement is self-inculpatory merely because it is part of a larger narrative. Rather, the court must analyze the admissibility of each separate remark.

The Williamson decision is not binding upon us because it was decided under the federal rule; that decision did not address any issue under the confrontation clause. We note, however, that its rationale has been adopted by a number of state courts. See, e.g., State v. Matusky, 343 Md. 467, 682 A.2d 694 (1996).

Here, the statements made by the girlfriend, all of which were made to the detective at the same session, were, in substance, as follows:

(1) On the day in question, she was present in an apartment in which Shervin Bunch was present.

(2) Initially, defendant and another person entered the apartment; they were followed by two others, who entered the apartment as Bunch was in the process of closing the door behind the defendant and the other party.

(3) All four of these individuals immediately went into the apartment's bedroom, while she and Shervin Bunch remained in the "main area."

(4) Shervin Bunch asked her what was going on, and she told him that the defendant and the other three had just been involved in a robbery.

(5) ...