Raile v. People, 05SC756.

• Decision Date: 20 November 2006
• Docket Number: No. 05SC756.,05SC756.
• Citation: 148 P.3d 126
• Parties: Ronnie RAILE, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 126

148 P.3d 126

Ronnie RAILE, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 05SC756.

Supreme Court of Colorado, En Banc.

November 20, 2006.

Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

Introduction

We confront for the first time the admissibility at trial of the hearsay statements of an unavailable witness made during the course of an initial police investigation in light of Davis v. Washington. Ronnie Raile was convicted at trial of second degree burglary, violation of a restraining order, and first degree criminal trespass. Raile appealed his conviction asserting that his right to confront and cross-examine witnesses was violated by the trial court's admission of an unavailable witness's testimony. After trial and during his appeal, the Supreme Court of the United States issued Crawford v. Washington significantly altering Confrontation Clause jurisprudence.

Prior to Crawford, the admissibility of testimonial hearsay statements was subject to a reliability test set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In contrast, Crawford held that no testimonial hearsay could be admitted at trial unless the declarant was unavailable and the accused had a prior opportunity to cross-examine the declarant, effectively overruling Roberts with respect to the admissibility of testimonial hearsay. Crawford, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177. Applying Crawford, the court of appeals disagreed with Raile, finding that the challenged statements were not testimonial and thus properly admitted. People v. Raile, No. 03CA1560, slip op. at 17, 2005 WL 2157500 (Colo.App. Sept.8, 2005)(not selected for publication). Raile appealed and we granted certiorari.

After we granted certiorari, but before oral arguments, the Supreme Court issued Davis v. Washington. In Davis, the Supreme Court elaborated on the meaning of "testimonial." We now review this case in light of both the Crawford and Davis decisions. We find that the statements made by the witness to the investigating officer were testimonial and their admission violated Raile's constitutional right to confront witnesses. However, this error was harmless beyond a reasonable doubt. Therefore, we affirm the decision of the court of appeals on separate grounds.

I. Facts and Procedural History

A jury found Ronnie Raile ("Raile") guilty of second degree burglary, violation of a restraining order, and first degree criminal trespass. At the same time, he was acquitted of a harassment charge. During the trial, the court allowed a police officer to testify to the hearsay statements of Justine Cone ("Cone"), an unavailable witness who did not testify and who was not subject to cross examination by Raile. The witnesses who did testify described the following events.

During the early morning hours of June 14, 2002, Raile visited a trailer owned by Angela Kent ("Kent"). Raile was there to visit his wife, who, according to her testimony at trial, invited him over to talk that evening. Raile's wife left the back door unlocked so he could come in that night. Along with Kent and Raile's wife, also in the trailer were Raile's stepdaughter, his wife's friend Cone and Cone's baby. Raile's wife testified that she was staying in one bedroom, Kent in a second bedroom and Cone was in a third room. At the time Raile visited the trailer, there was a "no contact order" in effect that prevented Raile from having any contact with his wife or stepdaughter.¹

When Raile entered the back door to the trailer, his wife was already in bed. As Raile went to his wife's room, Cone encountered Raile in the hallway of the trailer where an altercation between them ensued. Cone then went to Kent's bedroom and said that Kent "needed to call the cops." Kent described Cone as afraid and shaking but not crying when Cone walked into her bedroom.

At trial, Kent testified to the statements that Cone then made to her: that Raile pushed her, knocked her into the wall while she had her baby in her arms, and that he was coming into the house and "hitting people." Kent did not call the police right away. Rather, she left her bedroom and checked the house. Kent then explained that because Cone "was in such a manner that she wasn't comfortable with what was going on," Kent decided to call the police. Cone never testified. The trial court, after hearing Raile's Confrontation Clause and hearsay objections, ruled that these statements were admissible under the "excited utterance" exception to otherwise inadmissible hearsay.²

After Kent testified, Officer Swisher ("Swisher") took the stand. Swisher testified that Cone told him that Raile did not knock or announce himself, that he had pushed her, that he was screaming and yelling, and that she was scared that Raile was going to punch her. Swisher described Cone as upset and angry at the time that he spoke with her.

When describing the scene that night, Swisher testified that within five minutes of receiving the dispatch call, he and Officer Parker, both from the Thornton Police Department, arrived. The call was relayed to them as an "in-progress burglary" where the "suspect may still be inside." As a result, they parked their police car down the street and approached cautiously on foot.

At trial, Swisher testified that when he arrived, Cone was standing on the front porch of the trailer and told Swisher "he's around back." Swisher and Parker went to the back of the trailer and spotted Raile bent over looking into a window and yelling. Swisher then confronted Raile, telling him to turn around and put his hands up. Swisher asked Raile what he was doing there. Raile, in compliance with Swisher's request, responded by saying he was "chasing someone away from the home." Not knowing if Raile was a suspect, Swisher patted him down for weapons and, finding none, led him around to the front of the trailer. Swisher described Raile's demeanor as initially agitated and upset, but very polite and cordial after Raile calmed down.

At some point after bringing Raile to the front of the trailer, Swisher took statements from everyone present including Cone, who made both verbal and written statements to the investigating police officers at the trailer that night. Due to the leading questions of the prosecutor at trial, it is unclear exactly where or how Swisher obtained Cone's statements.³ However, Kent testified that when the police came in: "they took all our stuff down, we were all in the room writing it down all at the same time." Relying on his previous ruling that Cone's statements to Kent were "excited utterances," the trial court judge also admitted Cone's statements as offered through Officer Swisher.⁴

Raile objected throughout the trial to the admission of Cone's out-of-court statements on both hearsay and Confrontation Clause grounds. On appeal, Raile argued that the trial court's admission of Cone's hearsay statements violated his Sixth Amendment right to confront witnesses under the newly issued United States Supreme Court opinion Crawford v. Washington.⁵ The court of appeals, applying Crawford, found Cone's statements were nontestimonial and thus properly admitted under an exception to the hearsay rule that otherwise excludes such evidence. Raile, slip op. at 17. After rejecting Raile's other issues, the court of appeals affirmed Raile's conviction. Id. at 29. Raile petitioned this Court for certiorari to review, among other matters, the court of appeals' finding that Cone's statements to Officer Swisher were nontestimonial.

We granted certiorari to review whether Cone's statements to Officer Swisher were testimonial. During the time between certiorari being granted and oral arguments, the United States Supreme Court issued Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), addressing the scope and meaning of "testimonial" statements in the context of the Sixth Amendment and Crawford. Using Crawford and Davis as our guides, we find that Cone's statements to Officer Swisher were testimonial. However, we also find that the admission of these statements was harmless error. We therefore affirm the court of appeals on other grounds.

II. Analysis

The Sixth Amendment of the Constitution of the United States guarantees an accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. This guarantee applies to state as well as federal prosecutions. Crawford v. Washington, 541 U.S. at 42, 124 S.Ct. 1354. Raile argues that his right to confront witnesses was violated when the trial court admitted the hearsay statements of an unavailable witness he did not have the opportunity to cross-examine. Applying the precedent established in Davis v. Washington, we agree.

A. Testimonial Hearsay Statements under Davis

Under the Sixth Amendment to the United States Constitution, testimonial hearsay must be excluded when the declarant is unavailable and there has been no prior opportunity for cross-examination by the defendant. Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177; People v. Vigil, 127 P.3d 916, 921 (Colo.2006).⁶ It is the testimonial nature of the statement that subjects some hearsay statements to exclusion under the Confrontation Clause, while others are merely subject to the rules of evidence. Davis, 126 S.Ct. at 2273. Certain "core" testimonial statements are always subject to the limitations of the Confrontation Clause.⁷ These core statements also form the "perimeter" of what may be considered "testimonial" statements for Confrontation Clause purposes. Id. at 2274.

Testimonial statements subject to exclusion under the Sixth Amendment include statements taken by police...