COLORADO COURT OF APPEALS 2016COA184
Court of Appeals No. 11CA1182 City and County of Denver District Court No. 10CR81 Honorable Edward D. Bronfin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Peter Wilson Sund Beller,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE MILLER Graham and J. Jones, JJ., concur
Announced December 29, 2016
Cynthia H. Coffman, Attorney General, John J. Fuerst III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Peter Wilson Sund Beller,1 went to trial for felony
murder and two counts of aggravated robbery. The aggravated
robbery charges — along with the noncharged offenses of attempted
aggravated robbery, robbery, and attempted robbery — served as
predicate offenses underlying the felony murder count. The jury
acquitted Beller of both aggravated robbery counts but hung on the
felony murder count. The trial court held a second trial on the
felony murder count with robbery and attempted robbery serving as
predicate offenses. The second jury convicted Beller of felony
murder.
¶2 We are unaware of authority from the United States Supreme
Court or from Colorado directly controlling Beller’s argument that
his retrial for felony murder violated the Double Jeopardy Clause.
We ultimately conclude that it did not. We then conclude that
admitting a codefendant’s hearsay statements did not violate the
hearsay rules or our state Confrontation Clause. We therefore
affirm Beller’s felony murder conviction.
1The mittimus and papers filed in this court spell defendant’s last name as Beller. At trial, however, defendant spelled his name Bellar, and most of the papers filed in the trial court used that spelling. For convenience, we adhere to the spelling used in the mittimus and by the parties in this court.
1 I. Background
¶3 Beller arranged to buy two ounces of marijuana through a
man named Justin Singleton. Singleton brought Beller to his
father’s house to complete the deal.
¶4 According to Singleton, he retrieved the two ounces of
marijuana from his father’s room and gave it to Beller. Beller then
pulled out a gun and demanded the rest of the marijuana in the
house. Singleton alerted his father that Beller had a gun.
Singleton’s father retrieved his own gun and walked into the
hallway. Several shots were fired and Singleton’s father fell to the
ground. Singleton grabbed a gun and started shooting; Beller fled.
¶5 Beller described a different version of these events. He said
his friend, Scott Shaffer, drove him to meet Singleton. Shaffer
stayed in the car when Beller got out and accompanied Singleton
and one of Singleton’s friends to a house. While Singleton
discussed the deal with his father in another room, Beller took out
$600, set it on a table, and walked towards the other room to
“haggle” with Singleton. As he walked he heard feet “shuffling,”
looked back, and saw Singleton’s friend running out the door; his
money was gone. Beller pulled out a gun to chase Singleton’s
2 friend. Singleton saw the gun and ran into another room.
Singleton’s father then appeared and shot Beller in the chest.
Although Beller did not remember shooting his gun, he was “pretty
sure” he did. Singleton then shot at him, but he was able to run
out of the house. Shaffer took him to the hospital.
¶6 Beller shot Singleton’s father in the head during these events
and the father died as a result.
¶7 The People charged Beller with felony murder (with Singleton’s
father as the victim), two counts of aggravated robbery (with
Singleton and his father as victims), and menacing (with Singleton’s
friend as the victim). The trial court’s jury instructions identified
aggravated robbery, attempted aggravated robbery, robbery, and
attempted robbery as predicate offenses for the felony murder
count. The court also instructed the jury about the elements of
aggravated robbery, robbery, and attempt. The verdict forms on the
aggravated robbery counts did not permit the jury to consider any
lesser included offenses. The jury found Beller not guilty of both
aggravated robbery counts, guilty of menacing, and hung on the
felony murder count. The trial court declared a mistrial on the
felony murder count.
3 ¶8 Before the second trial, Beller moved for a judgment of
acquittal on the felony murder count, arguing that the Double
Jeopardy Clause precluded another trial on that count. The trial
court denied Beller’s motion. In the second trial, the court’s
instructions identified only robbery and attempted robbery as
predicate offenses for felony murder, but those predicate offenses
were not charged as stand-alone offenses. The jury found Beller
guilty of felony murder.
II. Discussion
¶9 On appeal, Beller argues that his retrial for felony murder
violated the Double Jeopardy Clause. He also argues that the court
violated the hearsay rules and his confrontation rights by admitting
several of Shaffer’s hearsay statements.
A. Double Jeopardy
¶ 10 We review double jeopardy claims de novo. People v. Frye,
2014 COA 141, ¶ 30.
¶ 11 The Double Jeopardy Clause guarantees that no person shall
“be subject for the same offence to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V; accord Colo. Const. art. II, § 18. This
language embodies two rules bearing on this case. First, a
4 defendant may not be subjected to successive prosecutions for the
same offense after an acquittal. Monge v. California, 524 U.S. 721,
727-28 (1998). Second, issue preclusion prevents the prosecution
from litigating again any issue that was necessarily decided by a
jury’s not guilty verdict in a prior trial. See Yeager v. United States,
557 U.S. 110, 119 (2009). Beller argues that both rules were
violated when he was retried for felony murder after the first jury
found him not guilty of aggravated robbery.
1. Successive Prosecutions for the Same Offense
¶ 12 Beller’s argument starts with his claim that felony murder and
all four original predicate offenses — aggravated robbery, attempted
aggravated robbery, robbery, and attempted robbery — are the
“same offense” for double jeopardy purposes. It is unclear whether
the People dispute this claim, but, in any event, we agree with it.
¶ 13 For double jeopardy purposes, “the test to be applied to
determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932). By
definition, a greater offense and any lesser offense included in it are
the “same” for double jeopardy purposes. Brown v. Ohio, 432 U.S.
5 161, 168 (1977). A predicate felony is a lesser included offense of
the felony murder count it supports. Meads v. People, 78 P.3d 290,
295 (Colo. 2003). Robbery is a lesser included offense of aggravated
robbery. People v. Borghesi, 66 P.3d 93, 97 (Colo. 2003). And a
charged offense necessarily includes an attempt to commit the
charged offense. See Crim. P. 31(c). All of this means that the
felony murder count against Beller and all four original predicate
offenses were the same offense for double jeopardy purposes. We
now turn to whether Beller was subjected to successive
prosecutions.
¶ 14 The Double Jeopardy Clause, however, applies only if there
has been an event — an acquittal, for example — that terminates
the original jeopardy. Richardson v. United States, 468 U.S. 317,
325 (1984). The failure of the jury to reach a verdict, however, is
not an event that terminates jeopardy. Id. So a retrial following a
hung jury does not offend the Double Jeopardy Clause. Id. at 324.
¶ 15 Beller, however, focuses not on the first jury’s failure to agree
about felony murder but on its not guilty verdicts on the aggravated
robbery counts. He assigns two consequences to the not guilty
verdicts. First, he argues that the Double Jeopardy Clause
6 precluded a second trial for the greater offense of felony murder
after a jury acquitted him of the lesser included aggravated robbery
counts. Second, he argues that the first jury’s verdicts acquitted
him of aggravated robbery and the lesser included offenses of
attempted aggravated robbery, robbery, and attempted robbery. As
a result, he continues, the Double Jeopardy Clause precluded
further litigation over his guilt or innocence of robbery or attempted
robbery, the predicate offenses in his second trial. We are not
persuaded.
¶ 16 Fatal to Beller’s arguments is the fact that the People
prosecuted him for felony murder and the aggravated robberies
through the same information in the same case. In our view, the
consequence of that fact is that Beller was not subjected to
successive prosecutions.
¶ 17 Arguing otherwise, Beller relies on cases, such as Brown, in
which a defendant was charged separately with crimes that
constituted the “same offense.” The defendant in Brown was
charged with and convicted of joyriding after he was caught driving
a stolen car. 432 U.S. at 162. He was later charged with and
pleaded guilty to auto theft for stealing the car. Id. at 162-63.
7 Applying the Blockburger test, the Court concluded that joyriding
and auto theft constituted the same offense for double jeopardy
purposes. Id. at 168. This led the Court to further conclude that
the defendant had been twice placed in jeopardy for the same
offense. Id. at 169-70.
¶ 18 Because Brown involved separate prosecutions, it does not
address the situation before us, in which the People prosecuted
Beller for lesser and greater offenses in a single case through a
single information. The same is true of the other cases Beller relies
on that discuss separate prosecutions. See Illinois v. Vitale, 447
U.S. 410, 411-13 (1980) (juvenile was convicted of failing to reduce
speed to avoid an accident and was subsequently charged with
involuntary manslaughter); Harris v. Oklahoma, 433 U.S. 682, 682
(1977) (the defendant was convicted of felony murder and later
convicted under a separate information of a lesser included crime);
United States v. Gooday, 714 F.2d 80, 82 (9th Cir. 1983) (noting
that an “acquittal on the explicit charge therefore bars subsequent
indictment on the implicit lesser included offenses”).
¶ 19 Stronger support for Beller’s position is Wilson v. Czerniak,
355 F.3d 1151 (9th Cir. 2004). In Wilson, a jury acquitted the
8 defendant of intentional murder yet hung on greater counts of
aggravated felony murder. Id. at 1152. The court concluded that
the Double Jeopardy Clause precluded trying the defendant again
for aggravated felony murder after he had been acquitted of the
lesser included offense. Id. at 1157. We agree with Beller that
Wilson suggests that he could not be retried for felony murder after
being acquitted of the aggravated robbery counts. But we are not
bound by a federal circuit court’s interpretation of the Federal
Constitution. See People v. Rossman, 140 P.3d 172, 176 (Colo. App.
2006).
¶ 20 We are persuaded not to follow Wilson’s interpretation of the
Double Jeopardy Clause for two reasons. First, the Wilson court
relied on Brown to support the proposition that “a criminal
defendant may not be retried for a crime following an acquittal or
conviction on a lesser included or greater inclusive offense.” 355
F.3d at 1154. But, as we discussed earlier, Brown, unlike Wilson
and this case, involved separate prosecutions. Yet the Wilson court
did not acknowledge this difference or explain why it should not
matter.
9 ¶ 21 Second, in order for the defendant in Wilson to have been
found guilty of the greater offense of aggravated murder, each of the
elements of the lesser offense of the intentional murder count had
to have been established. Id. at 1155. Thus, trying the defendant
again on aggravated murder necessarily would have given the
prosecution a second chance to relitigate the elements of intentional
murder, one or more of which the jury had already found lacking.
See Brown, 432 U.S. at 165 (Double Jeopardy Clause protects the
accused from attempts to relitigate facts underlying prior acquittal).
In this case, however, Beller could have been found guilty of the
greater offense of felony murder without committing all of the
elements of aggravated robbery because aggravated robbery was not
the only predicate offense specified by the prosecution. For
example, the second jury could have found that Beller did not take
anything of value, but nonetheless attempted to commit simple
robbery — a predicate offense relied on by the prosecution in both
trials.
¶ 22 Shortly after Wilson, a different panel of the Ninth Circuit
concluded under similar circumstances that whether the relevant
greater and lesser offenses are part of the same indictment “makes
10 all the difference” for double jeopardy purposes. United States v.
Jose, 425 F.3d 1237, 1242 (9th Cir. 2005). The defendants in Jose
were convicted of felony murder and predicate offenses. Id. at
1240. Their predicate offense convictions were affirmed and their
felony murder convictions reversed on appeal. Id. The Jose panel
rejected the defendants’ argument that the Double Jeopardy Clause
precluded retrial for felony murder, concluding that “final
convictions on the underlying predicate felonies do not trigger
double jeopardy protections against retrial of the greater offense
originally charged under the same indictment in the same trial.” Id.
at 1248.
¶ 23 We are mindful of two differences between Jose and this case.
First, in Jose the prosecution sought a retrial after an appeal; in
this case the prosecution sought a retrial after a hung jury.
Second, the defendants in Jose were convicted of lesser included
offenses; Beller was acquitted of lesser included offenses.
¶ 24 Neither difference renders Jose’s analysis inapplicable here.
Jeopardy continues “whether the retrial is precipitated by a hung
jury or a defendant’s successful reversal of conviction.” Id. at 1244.
And the Jose panel found insignificant for its purposes whether
11 jeopardy terminated on one charge because of a conviction as
opposed to an acquittal. Id. at 1244-45. At bottom, this case
shares with Jose the features that the panel considered relevant:
“the greater and lesser included offenses were tried together under
the same indictment, jeopardy terminated as to one of the offenses,
but did not end on the charge sought to be retried.” Id. at 1245.
¶ 25 We agree with the panel’s analysis in Jose and apply it here to
conclude that jeopardy did not terminate on the felony murder
count after Beller’s first trial even though he was acquitted of
predicate offenses. And because jeopardy did not terminate on the
felony murder count, the Double Jeopardy Clause did not preclude
retrial on that count.
¶ 26 A division of the Court of Appeals of Arizona reached the same
conclusion in a similar case. See Lemke v. Rayes, 141 P.3d 407
(Ariz. Ct. App. 2006). As relevant here, the defendant in Lemke was
charged with felony murder with armed robbery as the predicate
offense and was also charged with armed robbery. Id. at 410-11.
The jury hung on the felony murder count and convicted the
defendant of theft, a lesser included offense of armed robbery. Id.
at 411. The Lemke division assumed that by convicting the
12 defendant of theft and leaving blank the armed robbery verdict
form, the jury impliedly acquitted him of armed robbery. Id. at 412-
13. Nevertheless, the division ultimately concluded that the Double
Jeopardy Clause did not preclude another trial on the felony
murder count: “Even though we have deemed [the defendant’s]
jeopardy on the armed robbery offense as terminated based on the
concept of implied acquittal, the inability of the jury to reach a
verdict on the felony-murder count at his first trial means that [the
defendant’s] jeopardy as to that count never terminated.” Id. at
415; see also Lemke v. Ryan, 719 F.3d 1093, 1103-04 (9th Cir.
2013) (rejecting double jeopardy claim for same defendant on
petition for habeas corpus relief); Delgado v. Fla. Dep’t of Corr., 659
F.3d 1311, 1330-31 (5th Cir. 2011) (relying on Jose to reject double
jeopardy claim).
¶ 27 In addition, our conclusion accords with authority from the
United States Supreme Court and another division of this court.
The Supreme Court has declined to hold “that a determination of
guilt and punishment on one count of a multicount indictment
immediately raises a double jeopardy bar to continued prosecution
on any remaining counts that are greater or lesser included offenses
13 of the charge just concluded.” Ohio v. Johnson, 467 U.S. 493, 501
(1984). A division of this court has also held that the Double
Jeopardy Clause allows retrial on a greater offense if the jury
deadlocks on that greater offense but convicts on a lesser included
offense. People v. Aguilar, 2012 COA 181, ¶¶ 21-22. Johnson and
Aguilar do not square with the principle underlying Beller’s
arguments — that an event terminating jeopardy on one count also
terminates jeopardy on any other count in the same case that
constitutes the “same offense” under Blockburger.
¶ 28 Contrary to Beller’s argument, we do not think Doubleday v.
People, 2016 CO 3, bolsters his case. In Doubleday, the supreme
court held that “to establish that a defendant has committed or
attempted to commit a predicate offense so as to support a felony
murder conviction, the prosecution must prove beyond a reasonable
doubt all elements of that predicate offense, including the
inapplicability of any properly asserted affirmative defense.” Id. at
¶ 26. As Beller concedes, Doubleday did not address “any double
jeopardy concerns.” For that reason, we decline Beller’s invitation
to attempt to apply the court’s reasoning in Doubleday to support
his double jeopardy arguments.
14 ¶ 29 We note, however, that if the first jury had found Beller guilty
of felony murder while acquitting him on aggravated robbery,
Doubleday would not require reversal because the jury could have
based such a verdict on the predicates of simple robbery or
attempted simple robbery. See id. at ¶¶ 2, 22. That is precisely
what the second jury did in the retrial conducted during the
“continuation of the initial jeopardy” caused by the hung jury. See
Yeager, 557 U.S. at 118.
¶ 30 We also reject Beller’s argument that his acquittals for
aggravated robbery prevented further litigation as to his
commission of the predicate offenses of robbery and attempted
robbery in his second trial. True, “subjecting [a] defendant to
postacquittal factfinding proceedings going to guilt or innocence
violates the Double Jeopardy Clause.” Smalis v. Pennsylvania, 476
U.S. 140, 145 (1986). But in Smalis, unlike in this case, the
prosecution sought to resume trial on the same counts for which
the defendants had already secured acquittals. Id. at 144-45. For
that reason, we conclude that Smalis does not apply here, where
the People sought a second trial only on a count for which jeopardy
had not terminated.
15 2. Issue Preclusion
¶ 31 The Double Jeopardy Clause embodies the doctrine of issue
preclusion, a doctrine providing “simply that when an issue of
ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443
(1970); see also Bravo-Fernandez v. United States, 580 U.S. ___, ___,
n.1, 137 S. Ct. 352, 356 n.1 (2016). In other words, the
prosecution may not relitigate any issue that a jury necessarily
decided through a not guilty verdict in a prior trial. Yeager, 557
U.S. at 119. An acquittal therefore might preclude retrial on counts
on which the same jury hangs. Id. at 125. The doctrine will not
apply, however, if “a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to
foreclose from consideration.” Ashe, 397 U.S. at 444 (citation
omitted).
¶ 32 To determine what a jury necessarily decided, courts examine
the record of the prior proceeding, including the pleadings, the
evidence, the charge, and other relevant information. Yeager, 557
U.S. at 119-20. An unresolved count, however, is not “relevant”
16 information: “the fact that a jury hangs is evidence of nothing —
other than, of course, that it has failed to decide anything.” Id. at
121, 125.
¶ 33 We disagree with Beller’s argument that the first jury’s not
guilty verdicts on the aggravated robbery counts necessarily
included a finding that he was not guilty of robbery and attempted
robbery, the predicate offenses in his second trial. The aggravated
robbery counts required proof that Beller committed robbery — that
he knowingly took “anything of value from the person or presence of
another by the use of force, threats, or intimidation” — and that
“during the act of robbery or immediate flight therefrom” he
knowingly wounded or struck the person robbed or any other
person with a deadly weapon. See §§ 18-4-301(1), 18-4-302(1)(b),
C.R.S. 2016.
¶ 34 The evidence at the first trial arguably conflicted about
whether Beller actually took marijuana from the victim’s home. So
the jury could have found Beller not guilty of the aggravated
robberies based on a finding that he did not take anything of value
from the victims. See § 18-4-301(1). The aggravated robbery
verdicts therefore did not necessarily resolve whether Beller
17 attempted to rob the victims. Alternatively, the aggravated robbery
verdicts could have been the product of a finding that Beller did not
knowingly wound or strike the victim with a deadly weapon based
on Beller’s repeated testimony that he did not remember firing his
gun. See § 18-4-302(1)(b). And so the aggravated robbery verdicts
did not necessarily resolve whether Beller committed robbery. For
these reasons, issue preclusion did not bar Beller’s second trial for
felony murder with robbery and attempted robbery as predicate
offenses.
¶ 35 We do not agree with Beller that the Supreme Court’s decision
in Yeager and our supreme court’s decision in Boulies v. People,
770 P.2d 1274 (Colo. 1989), bar the second trial on felony murder.
¶ 36 In Yeager, the defendant was charged with securities fraud
and insider trading. 557 U.S. at 113. The jury acquitted the
defendant on the fraud counts but hung on the insider trading
counts. Id. at 115. The prosecution sought to retry some of the
insider trading counts, the trial court agreed, and the defendant
took an interlocutory appeal, ultimately to the Supreme Court. The
Court expressly held that double jeopardy “precludes the
Government from relitigating any issue that was necessarily decided
18 by a jury’s acquittal in a prior trial.” Id. at 119 (emphasis added);
see also Bravo-Fernandez, 580 U.S. at ___, 137 S. Ct. at 358
(“[I]ssue preclusion ordinarily bars relitigation of an issue of fact or
law raised and necessarily resolved by a prior judgment.”)
(emphasis added). It ultimately concluded that if the defendant’s
possession of insider information was a critical issue of ultimate
fact for all of the charges, then a jury verdict that “necessarily”
decided that issue in the defendant’s favor would protect him from
prosecution of any charge for which that is an essential element.
Yeager, 557 U.S. at 123. The Court then remanded the case to the
lower courts to resolve that issue. Id. at 126.
¶ 37 In this case, the acquittal on the aggravated robbery charges
did not necessarily decide whether Beller engaged in simple or
attempted robbery. Yeager, therefore, does not support preclusion
of Beller’s retrial on felony murder relying only on the simple and
attempted robbery predicates that were also before the first jury.
¶ 38 The defendant in Boulies was convicted and sentenced
consecutively after a single trial on charges of both felony murder
and aggravated robbery; the sole predicate for the felony murder
charge was the same aggravated robbery. 770 P.2d at 1277. The
19 supreme court declined to reach the constitutional double jeopardy
issue because it concluded that the judicial rule of merger
“require[d] that the defendant’s separate conviction for aggravated
robbery be vacated.” Id. at 1281. The decision therefore has no
direct application to this case, where there is no possibility of Beller
facing convictions and consecutive sentences for both felony
murder and the separate aggravated robbery charges of which he
was acquitted.
¶ 39 We are also not persuaded by Beller’s reliance on People v.
Wilson, 852 N.W.2d 134 (Mich. 2014), abrogated by Bravo-
Fernandez, 580 U.S. ___, 137 S. Ct. 352, and Wright v. State, 515
A.2d 1157 (Md. 1986), abrogated on other grounds by Price v. State,
949 A.2d 619 (Md. 2008). The Wilson majority concluded that the
Double Jeopardy Clause precluded retrial of the defendant for
felony murder after he had been acquitted of the only predicate
felony. 852 N.W.2d at 136. Similarly, Wright held that the
defendant’s acquittal for the only predicate felony “was a bar to
further criminal proceedings on a felony murder theory sharing a
common essential element.” 515 A.2d at 1167. Wilson and Wright
share the same crucial difference from this case: the defendants in
20 those cases were acquitted of the single predicate offense
underlying each of the felony murder counts. Here, in contrast, the
first jury expressly acquitted Beller of aggravated robbery, only one
of the four predicate offenses.
¶ 40 Accordingly, Beller’s retrial and conviction of felony murder
was not barred by issue preclusion.
B. Hearsay
¶ 41 Beller next argues that the trial court violated the hearsay
rules and his confrontation rights when it admitted several
statements that Shaffer made to other witnesses. We disagree.
1. Factual Background
¶ 42 Shaffer did not testify at Beller’s trial. The parties agreed that
he was unavailable as a witness because he had invoked his Fifth
Amendment privilege against self-incrimination. The trial court
permitted several witnesses to testify about statements Shaffer
made the night of the shooting.
¶ 43 Samantha Kern, Shaffer’s girlfriend, testified that she was with
her friend, Sunni Torres, at Torres’ apartment the night of the
shooting. According to Kern, Shaffer came to the apartment and
told her the following:
21 Beller had been shot and had shot Singleton’s father.
The car that Shaffer was driving was “around the block or a
block away” when the shooting occurred.
Beller told Shaffer that he had been shot and that he needed
to go to the hospital. Shaffer told him that if he went to the
hospital, he would be in trouble. Beller replied that he
would die if he did not go to the hospital.
At first, Shaffer did not think Beller had been shot, but then
he realized Beller was hurt “because he was kind of passing
out.”
Shaffer dropped Beller off a block away from the hospital.
¶ 44 Torres also testified, claiming that Shaffer said the following at
her apartment:
“[H]e’s got this other kid that was going to set up this other
kid’s dad who grows marijuana for robbery.”
Something had gone wrong, Singleton’s father had been shot,
and Beller had gone to jail.
“The father” had been shot “where the kid’s dad grew
marijuana.”
22 Shaffer was going to meet Beller’s girlfriend.
¶ 45 Torres agreed on cross-examination, however, that her
memory about exactly what Shaffer said at the apartment was “a
little fuzzy” and that she was unsure whether she learned
information from Shaffer, from other people, or from the media.
She also said that Shaffer had not used the word “robbery.”
¶ 46 Lauren Frink, Beller’s girlfriend, testified that on the night of
the shooting she spoke to Shaffer on the phone and then went to
his house. When she arrived, Shaffer said Beller was in the
hospital.
¶ 47 The court admitted a video recording of a police interview with
Frink. In the interview, Frink said that Shaffer told her the
following on the night of the shooting.
Beller insisted that Shaffer take him somewhere so that
Beller could rob the “place.”
Shaffer drove Beller and gave him a pistol. The gun was not
Shaffer’s. Beller was trying to rob Singleton.
“The guy had some pot over there.”
Shaffer parked around the block or down the street.
23 Shaffer heard one shot when he was sitting outside. A few
moments later, he heard someone say, “Don’t do it, [Beller].”
Then he heard “a succession of shots.”
Shaffer thought Beller shot somebody.
Beller came running out saying, “They got me. They got
me.” Beller also said, “I’m hit.”
Beller had been shot.
Shaffer did not think Beller had been shot because there
was not much blood. He tried to talk Beller out of going to
the hospital, telling him that if he went to the hospital, he
would be turning himself in. Beller said he would die unless
he went to the hospital.
Shaffer drove Beller to the hospital.
Frink told police that after she screamed at Shaffer, demanding that
he admit that he gave Beller the gun, Shaffer said, “I gave him the
gun.” Frink also claimed during the interview that Shaffer was
worried about the police showing up at his house when she spoke
to him.
24 2. Preservation
¶ 48 Beller asserts that admitting Shaffer’s statements violated the
Federal and State Confrontation Clauses. He also contends that
the statements were inadmissible hearsay.
¶ 49 The Federal Confrontation Clause is implicated only by
testimonial hearsay. Michigan v. Bryant, 562 U.S. 344, 354 (2011).
Beller neither challenges the trial court’s ruling that Shaffer’s
statements were nontestimonial nor presents a meaningful
argument related to the Federal Confrontation Clause. So we will
not consider his federal claim. See People v. Simpson, 93 P.3d 551,
555 (Colo. App. 2003) (declining “to consider a bald legal
proposition presented without argument or development”).
¶ 50 The People claimed in the trial court that Shaffer’s statements
were admissible under the exceptions to the hearsay rule for excited
utterances under CRE 803(2) and for statements against interest
under CRE 804(3). The trial court overruled Beller’s objections with
thoughtful analysis based on both exceptions. On appeal, the
People dispute whether Beller preserved the argument relied on in
this court for challenging the admission of the statements under the
excited utterance exception, but do not dispute that Beller’s
25 arguments supporting his objections to admissibility as statements
against interest were preserved. Because we conclude the
statements at issue were properly admitted under the statements
against interest exception, we need not consider whether the excited
utterance arguments were preserved.
¶ 51 The People concede that Beller preserved his claim under
Colorado’s Confrontation Clause.
3. Colorado’s Confrontation Clause
¶ 52 We review de novo whether a trial court violated a defendant’s
confrontation rights. People v. Smalley, 2015 COA 140, ¶ 20.
¶ 53 Our State Confrontation Clause bars a nontestimonial hearsay
statement (if the defendant has not had a prior opportunity for
cross-examination) unless the declarant is unavailable and the
statement bears sufficient indicia of reliability. People v. Phillips,
2012 COA 176, ¶ 84. A statement is sufficiently reliable for
confrontation purposes if it falls within a firmly rooted hearsay
exception or if it holds particularized guarantees of trustworthiness.
People v. Hagos, 250 P.3d 596, 624 (Colo. App. 2009).
¶ 54 To determine whether a statement bears particularized
guarantees of trustworthiness, courts assess the totality of the
26 circumstances surrounding the statement. See Bernal v. People, 44
P.3d 184, 197 (Colo. 2002). Factors relevant to a statement’s
trustworthiness include where, when, and how the statement was
made; to whom the statement was made; what prompted the
statement; what the statement contained; and what may have
motivated the declarant to make the statement. See id.
4. Hearsay and Statements Against Interest
¶ 55 Hearsay — an out-of-court statement offered in evidence to
prove the truth of the matter asserted — is generally inadmissible.
See CRE 801(c); CRE 802; People v. McFee, 2016 COA 97, ¶ 10.
But there are many exceptions to the general rule prohibiting
hearsay. One such exception permits courts to admit statements
against the declarant’s interest. CRE 804(b)(3). A statement
against interest, as relevant here, is a statement that (1) “a
reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made,” it had so
great a tendency to expose the declarant to criminal liability; and (2)
“is supported by corroborating circumstances that clearly indicate
its trustworthiness.” Id.
27 ¶ 56 A statement that inculpates the accused in addition to the
declarant is admissible under CRE 804(b)(3) only if it satisfies three
requirements. Bernal, 44 P.3d at 195-96. First, the declarant must
be unavailable as a witness. Id. at 196. Second, the statement
must tend to subject the declarant to criminal liability. Id. And
third, the prosecution must establish by a preponderance of the
evidence that corroborating circumstances clearly demonstrate the
statement’s trustworthiness. Id. To determine whether
corroborating circumstances demonstrate the statement’s
trustworthiness, courts must limit their analysis to circumstances
surrounding the statement itself; they should not rely on other
independent evidence implicating the defendant. Id.
¶ 57 CRE 804(b)(3) allows courts to admit not only a precise
statement against interest but also “related, collaterally neutral
statements.” People v. Newton, 966 P.2d 563, 578 (Colo. 1998).
¶ 58 The exception to the hearsay rule for statements against
interest is not a “firmly rooted” exception. Bernal, 44 P.3d at 197.
But CRE 804(b)(3)’s requirement that a statement against interest
offered against an accused be supported by “corroborating
circumstances” incorporates the Confrontation Clause’s
28 requirement that a statement bear particularized guarantees of
trustworthiness. See Bernal, 44 P.3d at 196-97, 199.
5. Analysis
¶ 59 To begin, we note that no one disputes that Shaffer was
unavailable as a witness. So the unavailability requirement of both
the hearsay exception for statements against interest and the
Confrontation Clause is satisfied.
¶ 60 We turn, then, to whether Shaffer’s statements tended to
expose him to criminal liability and conclude that they did. This
question focuses on whether a reasonable person in the declarant’s
position would not have made the statements unless the person
believed them to be true. Newton, 966 P.2d at 576. Shaffer’s
statements exposed him to criminal liability because they describe
him and Beller planning and attempting to rob the Singletons of
marijuana. For that reason, a reasonable person in his position
would not have made those statements believing them to be untrue.
¶ 61 We are not persuaded by Beller’s arguments to the contrary.
In his view, many of Shaffer’s statements were not against Shaffer’s
own interest because they “attempted to shift blame” to Beller. But
the mere fact that Shaffer’s statements also implicated Beller does
29 not mean that they did not expose Shaffer to criminal liability. Cf.
United States v. Monserrate-Valentine, 729 F.3d 31, 53 (1st Cir.
2013) (noting that the declarant’s statement that he and four others
robbed a truck was “plainly self-inculpatory, even though it also
inculpated other members of [a] conspiracy”). Beller also argues
that a reasonable person would not understand complicity liability
or the crime of conspiracy, and therefore would not understand that
Shaffer’s statements exposed him to criminal liability. Although a
reasonable person may not know the precise legal requirements of
complicity or conspiracy liability, a reasonable person would know
that participating in a crime could create criminal liability.
¶ 62 The question becomes whether Shaffer’s statements are
sufficiently supported by corroborating circumstances, a question
that, under the circumstances of this case, incorporates the
requirement of our State Confrontation Clause that the statements
bear particularized guarantees of trustworthiness.
¶ 63 We agree with the trial court that the circumstances
surrounding Shaffer’s statements contain such guarantees. Shaffer
made the statements at Torres’ apartment and his own home to his
girlfriend and two acquaintances. Moreover, the statements
30 occurred shortly after the events they described. All of these
circumstances contribute to the statements’ trustworthiness. See
People v. Jensen, 55 P.3d 135, 139 (Colo. App. 2001) (concluding
that a codefendant’s statements were trustworthy because they
were made to a friend while the codefendant was not in police
custody).
¶ 64 The circumstances surrounding Shaffer’s statements contrast
sharply with those found in the cases on which Beller principally
relies, Lilly v. Virginia, 527 U.S. 116 (1999), and Stevens v. Ortiz,
465 F.3d 1229 (10th Cir. 2006). In both Lilly and Stevens, the
declarant was in custody and made statements in response to
police questioning. Lilly, 527 U.S. at 139; Stevens, 465 F.3d at
1240-42. Further,
[c]ourts have long recognized that an accomplice’s confession in police custody “is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.”
Stevens, 465 F.3d at 1241 (quoting Lee v. Illinois, 476 U.S. 530, 545
(1986)). The circumstances surrounding Shaffer’s statements,
31 unlike those surrounding custodial confessions, do not suggest that
Shaffer had a motive to shift blame, curry favor, or divert attention
to another. See Jensen, 55 P.3d at 139 (noting that statements
made to a friend were not “a result of leading questions or coercion,
or made in the hope of any lenity or favorable treatment”).
¶ 65 Beller also argues that Shaffer’s statements were unreliable
because of credibility problems of the witnesses who described
Shaffer’s statements at trial. But those witnesses were subject to
cross-examination, so their “credibility was a question for the jury
to determine.” Id.
¶ 66 For these reasons, we conclude that the trial court did not err
when it admitted Shaffer’s statements under the hearsay exception
for statements against interest. Nor did admitting them violate the
Colorado Confrontation Clause.
III. Conclusion
¶ 67 The judgment is affirmed.
JUDGE GRAHAM and JUDGE J. JONES concur.