People v. Smith, 87CA1616
| Decision Date | 19 October 1989 |
| Docket Number | No. 87CA1616,87CA1616 |
| Citation | 790 P.2d 862 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Darren Gene SMITH, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen. and Hope P. McGowan, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, and Barbara S. Blackman, Chief Appellate Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge NEY.
The defendant, Darren Gene Smith, appeals the judgment of conviction of first degree murder and second degree assault entered upon a jury verdict. The sole issue is whether the trial court erred in admitting the out-of-court statements of two non-testifying witnesses in violation of the confrontation clauses of the United States and Colorado constitutions. We reverse and remand for a new trial.
The events preceding the murder and assault are undisputed. The defendant and two companions, Thomas and Moss, were walking past the victim's residence when an argument developed between them and the victim. The argument escalated to a point at which the victim obtained a gun and fired it into the ground. Defendant and his companions left the scene.
Later that evening, a man jumped out from behind an adjoining building and fired three rounds from a sawed-off shotgun. Two rounds killed the victim and one round struck a juvenile in the leg and foot.
Initially, the juvenile told the investigating officers that he had not seen the shooter, but four days later he identified defendant as the shooter. Defendant challenged the credibility of the identification because it was dark at the time of the shooting and the juvenile conceded that he had dropped to the ground as soon as the shooting began.
Moss was interviewed approximately two weeks after the homicide. Initially, he denied any involvement in the shooting. However, the investigating officer falsely represented that Thomas had told the officer that Moss and defendant returned to the victim's residence following the initial argument. Moss then gave the officer an oral statement. A portion of Moss' statement was admitted as evidence in defendant's trial.
Thomas also denied any involvement in the shooting until he was advised of Moss' statement. He then gave the officers a lengthy statement which was recorded on video tape. Part of that video tape was also admitted into evidence.
The portions of the Moss and Thomas statements admitted into evidence were consistent in asserting that: there was an argument with the victim at the victim's residence; there was subsequently an agreement among the three individuals to shoot the victim; and they all drove with a sawed-off shotgun to a place near the victim's residence.
Not admitted into evidence were those portions of the statements made by Thomas and Moss which were in conflict as to who left the automobile with the shotgun, and who actually fired the shotgun. Thomas' statement implicated the defendant as the shooter, and Moss' statement implicated Thomas as the individual who had the shotgun when Thomas and defendant left the vehicle.
Codefendants Thomas and Moss ultimately pleaded guilty to second degree murder and received an agreed sentence. Each refused to appear and testify at defendant's trial. The trial court redacted the statements previously made by Thomas and Moss, admitting those portions that were in agreement and excluding the portions that were in conflict.
Defendant contends that admission of these unsworn, out-of-court statements violated the confrontation clauses of the United States and Colorado constitutions. We agree.
The right to confront and cross-examine witnesses is primarily a functional right that promotes reliability in criminal trials. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The truth-finding function of the confrontation clause is threatened when the confession of another is introduced against a criminal defendant without the benefit of cross-examination. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
However, the United States Supreme Court has ruled that if an unavailable witness' proffered out-of-court statement bears sufficient indicia of reliability, then admission of that hearsay statement does not violate the confrontation clause of the Sixth Amendment. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
In Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the court concluded that a codefendant's confession, which implicated the defendant, lacked sufficient indicia of reliability to overcome a presumption of untrustworthiness.
The Lee court rejected the argument that the codefendant's statements were reliable because the defendant's confession and the codefendant's confession "interlocked" on some points. There, the Supreme Court recognized that, if a confession by a codefendant is identical in all material respects to that of a defendant, then the likelihood that they are accurate is significantly increased:
(emphasis supplied)
Lee v. Illinois, 476 U.S. at 545, 106 S.Ct. at 2064. See also Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987).
In Lee, a joint trial in which the statements of defendant and codefendant were in substantial agreement, the material discrepancies between the statements were found to negate the indicia of reliability created by their interlock.
Here, the defendant made no statement with which the statements of the codefendants could be compared. Also, defendant was not tried with the codefendants whose out-of-court statements were admitted.
In a joint trial in which the declarant is a defendant, the declarant's statement would be admissible against the declarant but for the violation of the confrontation clause as to the other defendant in the same trial. See Bruton v. United States, supra. In Lee, the court ruled that this bar to the evidence may be avoided in a joint trial if the other defendant has made a statement which is substantially identical to declarant's statement.
Here, we have the statements of two codefendants, neither of whom was on trial with defendant, for which there is no initial rationale for admissibility. We therefore conclude that their substantial interlock would not create admissibility.
Moreover, here as in Lee, the discrepancies between the codefendant's statements preclude their admission in defendant's trial.
In Lee, as here, the confession was elicited only after the witness was told that the codefendant had already implicated him, and...
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...persuaded that any error in admitting the statement was harmless beyond a reasonable doubt. Cf. People v. Dement, supra; People v. Smith, 790 P.2d 862 (Colo.App.1989) (reversible error occurred in admission of two complicitors' statements that did not "interlock" on extent of defendant's De......