People v. Stephenson

• Decision Date: 23 November 2001
• Docket Number: No. 99CA0484.,99CA0484.
• Citation: 56 P.3d 1112
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dudley STEPHENSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

56 P.3d 1112

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dudley STEPHENSON, Defendant-Appellant.

No. 99CA0484.

Colorado Court of Appeals, Div. I.

November 23, 2001.

Rehearing Denied March 14, 2002.

Certiorari Denied October 21, 2002.

Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Lisa Dixon, Deputy State Public

Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge NEY.

Defendant, Dudley Stephenson, appeals from the judgment of conviction entered on jury verdicts finding him guilty of felony murder, aggravated robbery, and tampering with physical evidence. We reverse and remand for a new trial.

It is undisputed that defendant and his wife planned to steal a car. In response to a classified advertisement, they went to the victim's home. During the theft of his car, the victim was shot and killed. Defendant and his wife then left the scene in the victim's car.

The evidence at trial was disputed as to whether defendant or his wife was the shooter. Defendant's theory of the case was that he was guilty of theft, but not of aggravated robbery, because he did not intend to use force to steal the victim's car. He alleged that he was not armed and had no reasonable basis to believe that his wife was armed, and that she was the shooter. Therefore, under his theory, he could not be guilty of felony murder. See § 18-3-102(1)(b), C.R.S.2001.

I.

On appeal, defendant contends that the trial court erred in admitting an out-of-court statement made by his wife. Because we conclude that admission of the statement violated defendant's rights under the confrontation clauses of the United States Constitution and the Colorado Constitution, we agree.

Defendant moved to exclude the wife's statements as inadmissible hearsay. The court granted the motion except as to the wife's statement to the police officer who first spoke with her after she voluntarily reported the crime. The court ruled that the statement was admissible as either an excited utterance or a statement against penal interest.

We conclude that the statement against penal interest exception to the hearsay rule would apply, but defendant's confrontation clause rights were violated nonetheless.

A.

An excited utterance is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." CRE 803(2).

Before a statement may be admitted under CRE 803(2), three requirements must be met: (1) the event must be sufficiently startling to render normal reflective thought processes of the observer inoperative; (2) the statement must be a spontaneous reaction to the occurrence; and (3) direct or circumstantial evidence must exist to allow the jury to infer that the declarant had the opportunity to observe the startling event. People v. Dement, 661 P.2d 675 (Colo.1983).

It is undisputed that defendant's wife witnessed the event, and it is clear that she was distressed at the time of the statement. However, defendant argues that her statement, given at least three hours after the shooting, was not a spontaneous response to a startling event that left no time for reflective thought. We agree.

After leaving the victim's home in the victim's car, defendant and his wife discussed their future conduct. They went to a restaurant where defendant discarded his shirt and the gun, and his wife called two friends to get advice or seek refuge. Ultimately, defendant's wife went to her mother's home and then to her mother's workplace. After talking with her daughter, the mother called 911 and reported that defendant had killed someone.

The police arrived, and the wife gave her statement to one of the officers. The officer testified that when she arrived, there was a frantic air in the room bordering on panic. The wife was speaking very quickly. Part of the statement was given in the narrative, and part was prompted by clarification questions asked by the officer.

Defendant's wife told the officer that she and defendant had planned the theft and jointly purchased a gun to use in the theft, and that defendant shot the victim. The statement, which was given at least three hours after the incident, was about five minutes in length. Defendant's wife was then taken into custody.

Defendant argues fifteen minutes is the longest delay between a startling event and an excited utterance that Colorado appellate courts have permitted. See People v. Hulsing, 825 P.2d 1027 (Colo.App.1991)

. But see People v. Martinez, 18 P.3d 831 (Colo.App.2000)(victim's statement, made within 15 or 20 minutes after she was removed from the scene, was an excited utterance); People v. Fincham, 799 P.2d 419 (Colo.App.1990) (allowing excited utterances of children made less than two hours after mother's abduction).

The excited utterance exception "has been liberally interpreted so as to extend to statements made following a lapse of time from the startling event itself." There is no bright-line time limitation "because the duration of stress will obviously vary with the intensity of the experience and the emotional endowment of the individual." People v. Hulsing, supra, 825 P.2d at 1031. See also U.S. v. Alfonso, 66 F.Supp.2d 261 (D.P.R. 1999)

.

Under the circumstances here, we conclude that the statement was so far removed from the startling event, with several independent interludes of reflective thought, that the trial court abused its discretion in admitting the statement as an excited utterance under CRE 803(2).

B.

The statement against interest exception to the hearsay rule, as relevant here, permits the admission of a statement that "at the time of its making ... so far tended to subject [the declarant] to civil or criminal liability ... that a reasonable [person] in [the declarant's] position would not have made the statement unless [the person] believed it to be true." CRE 804(b)(3).

Trial courts are given wide discretion in determining the admissibility of evidence, including the admission of statements against penal interest. See People v. Barnum, 23 P.3d 1237 (Colo.App.2001)

(cert. granted June 11, 2001).

As a threshold matter, CRE 804(b)(3) requires that the declarant be unavailable. People v. Newton, 966 P.2d 563 (Colo.1998). Here, there is no dispute that defendant's wife was unavailable based on her invocation of her Fifth Amendment privilege against self-incrimination. See CRE 804(a)(1); People v. Farrell, 34 P.3d 401 (Colo.2001); Stevens v. People, 29 P.3d 305 (Colo.2001).

Under CRE 804(b)(3), the statement must tend to subject the declarant to criminal liability, and the trial court must determine whether a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. People v. Newton, supra.

Defendant argues that his wife's statement was not a statement against her penal interest because, although it subjected her to criminal liability for the less serious charges, it subjectively served to exonerate her of the more serious charge of murder, which she attributed to defendant, and further, she did not seem to appreciate that her statement exposed her to criminal liability for the more serious charges. We are not persuaded.

We cannot say that the trial court abused its discretion in concluding that the wife's statement was against her penal interest. She admitted to participating in a planned theft of a car at gunpoint and to her peripheral involvement in the killing of the owner. See People v. Newton, supra

(a statement may be against penal interest when it admits the declarant was an accessory to a robbery).

We therefore conclude that, although we might have reached a different result under these circumstances, the trial court did not abuse its discretion in concluding that the statement met the evidentiary criteria for admissibility under CRE 804(b)(3) as a statement against penal interest.

C.

However, a statement that would be admissible as a hearsay exception under the rules of evidence may nevertheless be deemed inadmissible pursuant to the confrontation protections contained in the United States and Colorado Constitutions. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; Stevens v. People, supra.

Out-of-court statements offered against an accused are constitutionally admissible only if the prosecution demonstrates that: (1) the declarant is unavailable; and (2) the statements either fall within a "firmly rooted" hearsay exception or bear "particularized guarantees of trustworthiness." Stevens v. People, supra, 29 P.3d at 311 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980)).

As previously noted, it is undisputed that defendant's wife was an unavailable declarant.

Furthermore, we conclude that because the wife's statement against penal interest was made to the police, it does not fall within a firmly rooted exception to the hearsay rule. See Stevens v. People, supra, 29 P.3d at 313

(although confessions made to fellow prisoners, family members, and friends may fall within a firmly rooted hearsay exception, "custodial confessions taken by law enforcement officers with a view to prosecution" are not within a firmly rooted exception). See, e.g., People v. Jensen, 55 P.3d 135 (Colo. App.2001) (statement was not inherently unreliable because co-defendant was not in custody and the statement was made to a friend).

Thus, our inquiry is whether the wife's statement here bore sufficient particularized guarantees of trustworthiness so as to be admissible.

Statements made by an accomplice that implicate another accused are presumptively unreliable. Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). This presumption is based on the "strong interest a co-defendant has in exculpating his actions while at the same time inculpating...