No. 97CA2236Colorado Court of Appeals.
February 17, 2000
Appeal from the District Court of Adams County, Honorable Philip F. Roan, Judge, No. 96CR1955
Page 673
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
Page 674
Ken Salazar, Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Division IV
Marquez and Roy, JJ., concur
Opinion by JUDGE VOGT
[1] Defendant, Antonio S. Farrell, appeals the judgment of conviction entered upon jury verdicts finding him guilty of murder in the first degree (intentional/deliberate), murder in the first degree (felony murder), robbery of an at-risk adult, aggravated robbery, second degree kidnapping, two counts of second degree burglary, two counts of conspiracy, first degree criminal trespass, and theft. He also appeals the sentences imposed. We reverse and remand for a new trial. [2] Defendant and his sixteen-year-old companion (codefendant) were arrested by policePage 675
investigating the disappearance of an elderly woman. The codefendant told police that he and defendant had kidnapped the woman, driven her to an isolated rural area, tied her to a concrete structure, piled heavy objects on top of her, and left her. According to the codefendant, the two youths then drove to the victim’s home and broke in. Over the next three days, they ransacked the house and took jewelry, money, and other valuables. They also broke into the garage of another house in the area and stole guns.
[3] Based on the codefendant’s description of where the woman had been left, the police went to the site and discovered her body. Defendant and the codefendant were charged with first degree murder and other offenses in connection with her death. In addition, the two were charged with burglary and related offenses in connection with the theft of guns from the second victim’s garage. [4] Defendant and the codefendant were tried separately, and the codefendant had already been convicted by the time of defendant’s trial. The jury found defendant guilty of the charged offenses relating to both victims. It rejected his affirmative defense of insanity. [5] For the offenses involving the woman, defendant received a sentence of life without the possibility of parole on the merged murder counts, along with concurrent sentences for kidnapping, aggravated robbery, second degree burglary, and conspiracy, and a consecutive 32-year sentence for the robbery of an at-risk adult. On the convictions for the offenses against the second victim, the court imposed concurrent sentences for conspiracy, first degree criminal trespass, and theft, and a consecutive 24-year sentence for second degree burglary. I.
[6] Defendant contends that, under controlling United States Supreme Court and Colorado Supreme Court decisions, the admission against him of his codefendant’s statement to the police violated his constitutional right of confrontation and requires reversal of his conviction. We agree.
A.
[10] Both the United States Constitution and the Colorado Constitution guarantee defendants in criminal cases the right to confront and cross-examine witnesses. U.S. Const. amend. VI, XIV; Colo. Const. Art. II, § 16. The United States Supreme Court has recognized that this right is “uniquely threatened” when an accomplice’s confession is sought to be introduced against such a defendant without the benefit of cross-examination. Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526 (1986); see also People v. Dement, 661 P.2d 675
(Colo. 1983).
Page 676
spread the blame to a criminal defendant are inherently unreliable, the Court acknowledged that the presumption of unreliability may be rebutted, but continued:
[13] Lilly v. Virginia, supra, 527 U.S. at ___, 199 S.Ct. at 1900, 144 L.Ed.2d at 135. [14] Lilly is a plurality opinion. Thus, the People argue that its precedential effect is limited. However, all the justices in Lilly agreed that reversal was required; and our review of the various concurring opinions, as well as the other Supreme Court cases on which Lilly relies, leads us to conclude that the propositions for which it is cited here represent the opinion of the majority of the Court. Thus, Lilly is binding on us. [15] After the trial in this case, but before Lilly, the Colorado Supreme Court also issued two decisions addressing the issue presented here. [16] In People v. Newton, 966 P.2d 563 (Colo. 1998), the court outlined a three-part test that must be satisfied before a statement inculpating a defendant may be admitted: (1) the witness must be unavailable, as required by CRE 804(a); (2) the statement must tend to subject the declarant to criminal liability and must be the kind of statement that a reasonable person in the declarant’s position would not have made unless the person believed it to be true; and (3) the People must show by a preponderance of the evidence that corroborating circumstances demonstrate the trustworthiness of the statement. [17] As to the third requirement, the supreme court stated — consistent with Lilly — that a trial court should limit its analysis to the circumstances surrounding the making of the statement and may not rely on other independent evidence that also implicates the defendant. In so holding, the court noted that its prior decision permitting consideration of independent corroborating evidence had been “effectively overruled” byIdaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).People v. Newton, supra, 966 P.2d at 575 n. 15. [18] Appropriate factors for a court to consider in conducting the trustworthiness inquiry include: where and when the statement was made, what prompted the statement, how the statement was made, and what the statement contained. People v. Newton, supra. [19] Finally, in Blecha v. People, 962 P.2d 931 (Colo. 1998), the supreme court held that the admission of a codefendant’s hearsay statement in a murder prosecution violated the defendant’s right to confrontation and constituted constitutional error, but that the error was harmless beyond a reasonable doubt. [20] Under these cases, the codefendant’s statement in this case was not admissible. Although, as the trial court found, the statement was clearly against the codefendant’s penal interest, this fact was not sufficient under Lilly to establish reliability. See Lilly v. Virginia, 527 U.S. at ___, 119 S.Ct. at 1901, 144 L.Ed.2d at 135-36 (“The Commonwealth’s next proffered basis for reliability — that [the accomplice] knew he was exposing himself to criminal liability — merely restates the fact that portions of his statements were technically against penal interest. . . . `[T]hat a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self inculpatory parts'”). [21] Nor was it sufficient that other evidence corroborated portions of the statement. See Lilly v. Virginia, supra, 527 U.S. at ___, 119 S.Ct. at 1901, 144 L.Ed.2d at 135, quoting Idaho v. Wright, supraNonetheless, the historical underpinnings of the Confrontation Clause and the sweep of our prior confrontation cases offer one cogent reminder: It is highly unlikely that the presumptive unreliability that attaches to accomplices’ confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions . . . [where] the government is involved in the statements’ production, and when the statements describe past events and have not been subjected to adversarial testing.
(“[t]o be admissible under the Confrontation Clause . . . hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial”); People v. Newton, supra.
Page 677
[22] Although the grounds relied on by the trial court were thus insufficient to permit admission of the statement, we must consider whether the statement was nevertheless admissible because the circumstances surrounding the making of the statement demonstrated its trustworthiness and reliability. See Lilly v. Virginia, supra (reviewing courts should independently review whether the government’s proffered guarantees of trustworthiness satisfied the demands of the Confrontation Clause). We conclude that the statement was not admissible on this basis. [23] The statement at issue was made while the codefendant, then sixteen years old, was in police custody. No parent, guardian, or attorney was present. Early on, the police told the codefendant that defendant had already told others about the crime. See Lee v. Illinois, supra(codefendant’s confession was unreliable in part because it was elicited only after he was told that defendant had already implicated him). [24] Further, the statement was not simply a narrative, but was the product of police questioning, including leading questions (e.g., Q: “Did [defendant] say he doesn’t remember because he doesn’t think he has a life anymore and he doesn’t give a damn, cause you obviously care?” A: “Yeah”). See Lee v. Illinois, supra (fact that confession was given in response to police questions was a further indicator of unreliability);Lilly v. Virginia, supra. [25] As the People point out, the codefendant was not seeking to exculpate himself when he gave the statement. However, this fact is not enough, without more, to render the statement reliable. Lilly makes clear that accomplices’ confessions that not only “shift,” but also “spread,” blame are presumptively unreliable. Lilly v. Virginia, supra, 527 U.S. at ___, 119 S.Ct. at 1900, 144 L.Ed.2d at 135. Further, although the codefendant did not minimize his own involvement, he pointed to defendant as the leader at critical points during the commission of the offenses. For example, he said that it was defendant who did most of the talking when they initially approached the woman, who had the idea to take her out to the country and leave her so that she could not report that they had stolen her car, who drove the car to the site, and who tied the victim up when they got there. [26] Nor do we agree with the People that the codefendant’s statement could be deemed reliable based on similarities between it and statements made by defendant to other individuals about the crimes. The latter statements have nothing to do with the circumstances surrounding the codefendant’s confession — which, under Lilly and Newton, is to be the focus of the reliability inquiry. [27] Moreover, even if the statements of defendant upon which the People rely may still be considered after Lilly and Newton, they would not amount to “interlocking confessions” sufficient to establish reliability under Lee v. Illinois, supra. [28] In Lee, the Court cautioned: “If those portions of the codefendant’s purportedly `interlocking’ statement which bear to any significant degree on the defendant’s participation in the crime are not thoroughly substantiated by the defendant’s own confession, the admission of the statement poses too serious a threat to the accuracy of the verdict to be countenanced by the Sixth Amendment.” Lee v. Illinois, supra, 476 U.S. at 545, 106 S.Ct. at 2064, 90 L.Ed.2d at 529. [29] The statements of defendant cited by the People touch on only a small portion of the events recounted in the codefendant’s confession, and in no way “thoroughly substantiate” that confession, as Lee v.Illinois requires. In the first statement, defendant told a detention facility official about his and the codefendant’s initial encounter with the woman victim, but said nothing about what happened after they drove off with her in the car. The second statement was recounted by a witness who had been with defendant and the codefendant at the houses of both victims and who testified that “they” — defendant and the codefendant — had told him they had taken the victim’s car and left her in a field. However, this witness did not specify which individual had told him about these matters, but, instead, consistently referred to both men, even when the prosecutor sought to focus his questioning on statements by defendant (e.g.,
Page 678
“Q: [D]id the defendant, Tony Farrell, tell you what he did with the old lady whose car they were in? A: Yes, they did”). Not only does the testimony of this witness relate to only a small part of the codefendant’s statement, but it does not even indicate whether the statements to which the witness testified were made by defendant or the codefendant.
B.
[30] Having concluded that admission of the statement was error, we must next consider whether the error can be deemed harmless.
[33] Blecha v. People, supra, 962 P.2d at 942 (quoting Merritt v.People, 842 P.2d 162 (Colo. 1992)). [34] Applying these factors here, we cannot conclude that admission of the codefendant’s statement was harmless error. Although there was other evidence, including physical evidence, that linked defendant to the crimes, the codefendant’s statement was the primary, if not the sole, evidence detailing defendant’s specific acts and demonstrating his mental state during the commission of the crimes. Whether defendant was acting intentionally or knowingly, or, conversely, whether he was unable to do so because of a mental disease or defect, was critical to the determination of his guilt as to all the charged offenses, not only as to murder after deliberation. [35] In contrast to Blecha, where the absence of any reference to the inadmissible statements during the prosecutor’s opening or closing arguments led the supreme court to conclude that the statements were of minimal importance, the statement at issue here was central to the prosecution’s case. Indeed, the prosecutor relied extensively on the statement during his opening, even quoting or paraphrasing language from it (e.g., “We were planning it anyway;” “We weren’t concerned about her coming back. You know, she was old, you know”). During closing argument, the prosecutors again referred to the statement repeatedly, particularly to those portions demonstrating that defendant was acting knowingly and intentionally, and that he knew right from wrong. [36] Because we cannot conclude beyond a reasonable doubt that the codefendant’s statement “did not contribute to” defendant’s convictions,see Blecha v. People, supra, we are compelled to reverse his convictions and remand the cause to the trial court for a new trial. [37] Based on our resolution of this issue, we do not address defendant’s argument that the statement was also inadmissible because the codefendant’s unavailability had not been established.An appellate court should examine a number of factors, including the importance of the witness’ testimony to the prosecution’s case, whether the testimony was cumulative, the presence or absence of corroborating or contradictory evidence on the material points of the witness’ testimony, the extent of the cross-examination otherwise permitted, and the overall strength of the prosecution’s case.
II.
[38] We also address briefly those additional issues raised by defendant that are likely to recur on remand.
A.
[39] Defendant contends that the trial court’s instruction on the presumption of sanity impermissibly shifted the burden of proof to him. The same argument regarding the same instruction was considered and rejected in People v. Bielecki, 964 P.2d 598 (Colo.App. 1998). We agree with the analysis and the result reached by the panel in Bielecki and,
Page 679
accordingly, perceive no error in the challenged instruction.
B.
[40] Defendant next contends that the trial court impermissibly relieved the jury of its obligation to find that he caused the victim’s death through criminal conduct when, in connection with its instruction on the elements of deliberative murder, it defined “cause” as “that act or failure to act which in natural and probable sequence produced the claimed injury.” Defendant argues that inclusion of the phrase “failure to act” permitted the jury to convict him of murder if he simply remained passive while the codefendant killed the victim.
C.
[45] We also disagree with defendant’s contention that the trial court abused its discretion by admitting evidence that he had stolen cars in the past.
Page 680
rather intentionally after deliberation, in shooting the victim). If defendant’s mental state is again in dispute on retrial, evidence of the prior car thefts may again be admitted for this purpose.
D.
[50] We do, however, agree with defendant that concurrent, not consecutive, sentences should have been imposed on his convictions for aggravated robbery and robbery of an at-risk adult.
E.
[53] Defendant argues, the People concede, and we agree that the mittimus may not reflect more than one first degree murder conviction. See Peoplev. Glover, 893 P.2d 1311 (Colo. 1995) (court may not enter judgments of conviction for felony murder and murder after deliberation for the murder of a single victim). If defendant is again convicted of more than one count of first degree murder on remand, the mittimus must reflect only a single murder conviction.
F.
[54] Finally, we agree with defendant that the trial court erred in imposing the maximum aggravated-range sentence on the conviction for second degree burglary against the second victim without complying with § 18-1-105(7), C.R.S. 1999, which requires findings detailing the specific extraordinary circumstances which warrant a sentence outside the presumptive range. Defendant points out that the incident giving rise to this conviction involved a different victim and was not attended by what he characterizes as the “unusually grim facts” surrounding the kidnapping and murder of the elderly woman.