Opinion
No. 99SC121
June 25, 2001 Rehearing Denied August 27, 2001
Certiorari to the Colorado Court of Appeals Court of Appeals No. 96CA1685.
JUDGMENT AFFIRMED
No. 99SC121 — Stevens v. People of the State of Colorado Constitutional Law — Confrontation Clause — Hearsay — Declaration Against Interest — Codefendant's Confession
David Stevens argues that his constitutional right to confront the witnesses against him was violated when the trial court admitted into evidence a tape recording and transcript of a codefendant's confession; the codefendant asserted his Fifth Amendment right and did not testify at Stevens's trial. In the confession, the codefendant admitted that he had murdered David Seiler, an associate of Stevens who was expected to testify against Stevens in an upcoming trial. The codefendant explained that Stevens solicited him to commit the murder and had helped him with its planning and execution.
The trial court determined that the confession was admissible because it fell within an exception to the hearsay rule as a statement against interest made by an unavailable witness. The court of appeals upheld the judgment of the trial court finding that the statement fell within a hearsay exception and was sufficiently reliable that its admission did not violate Stevens's rights under the Confrontation Clause.
The supreme court affirms the court of appeals' judgment. It finds that the admission of a codefendant's confession does not violate the Confrontation Clause because it contains sufficient guarantees of trustworthiness.
David Kaplan, Colorado State Public Defender, Pamela A. Dayton, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, Robert Mark Russel, First Assistant Attorney General, Jerry N. Jones, Special Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Respondent.
In this murder-for-hire case, the defendant, David Stevens, was convicted of first-degree murder, conspiracy to commit first-degree murder, and solicitation to commit first-degree murder, in connection with the February 28, 1993, shooting death of David Seiler. The prosecution's theory was that the defendant engaged John Swiger to kill the victim in order to prevent the victim from testifying against the defendant in an upcoming criminal trial scheduled for April 1993. In that trial, the same defendant, Stevens, was charged with kidnapping and severely beating the same victim, Seiler, in the late evening hours of December 31, 1991, and the early morning hours of January 1, 1992, some thirteen months before the victim was murdered. Following the victim's death but before the defendant was charged in connection with his murder, the defendant was tried and convicted of the kidnapping and assault charges. He was sentenced to imprisonment for life plus eighty years. For his convictions in connection with the murder case now before us, the defendant received a life sentence and two concurrent terms of twenty-four years each to be served consecutively with his previous sentences.
Stevens was convicted of: (1) first-degree murder under section 18-3-102, 6 C.R.S. (2000); (2) conspiracy to commit first-degree murder under section 18-2-201, 6 C.R.S. (2000); and (3) solicitation to commit first-degree murder under section 18-2-301, 6 C.R.S. (2000).
We granted certiorari to determine whether the court of appeals applied a proper Confrontation Clause analysis when it upheld the admission into evidence of the shooter Swiger's confession in Stevens's trial. The court of appeals determined that Swiger's confession was a statement against interest that was inherently trustworthy because it was supported by the following indicia of reliability: (1) the statement was strongly against Swiger's penal interest; (2) the statement was made after Swiger voluntarily waived his Miranda rights; (3) Swiger was not offered any favorable treatment in exchange for making the statement; and (4) the statement contained such detail as to suggest that Swiger had personal knowledge of the crime.People v. Stevens, No. 96CA1685, slip op. at 5-7 (Colo.App. Nov. 19, 1998) (not selected for official publication). We conclude that the appellate court did not err. Swiger's statement was admissible because it contained sufficient guarantees of trustworthiness.
We granted certiorari on the following issue:
(1) Whether the court of appeals erred in conducting its Confrontation Clause analysis.
I.
At the time of the crimes, the defendant Stevens was a man in his mid-forties who operated an illegal drug business from his Aurora home and recruited numerous individuals to assist him in his drug operations. Some, like the victim Seiler and his girlfriend, were young people in their teens or early twenties; the victim was twenty years old when he died. Other participants were adults in their thirties who, like the shooter Swiger and his girlfriend, claimed to have ties to motorcycle gangs. The defendant's home was the focus of activities related to the illegal drug trade, such as repackaging drugs for resale, and also was a place for socializing among people involved in the defendant's illicit business.
The chain of events that culminated in the victim's death began in December 1991 when the defendant's home was burglarized and drugs and money were stolen. The defendant, believing that the victim was responsible for the theft, arranged to have the victim kidnapped. On December 31, 1991, the defendant and two companions held the victim at gunpoint for several hours in the defendant's house. The three severely beat the victim while they interrogated him about the burglary.
In response to questioning by the defendant, the victim listed several people who he said were responsible for stealing the defendant's drugs and property. At some point during the assault, the defendant and the victim both spoke by telephone to three teenage girls who the victim claimed were involved in the burglary of the defendant's house. The defendant informed the girls that he would kill the victim if they did not help him find his drugs. One of the girls, however, called the police who rescued the victim and arrested the defendant. The defendant subsequently was charged with several crimes related to this incident.
In the weeks immediately following the abduction and beating, the victim withdrew from contact with the defendant. Over time, however, the victim and his girlfriend were drawn into the defendant's activities. In fact, in the month preceding his death, the victim and his girlfriend visited the defendant's house on a daily basis. The victim frequently said that he intended to lie at defendant's pending trial on the kidnapping and assault charges and that he would deny that the defendant had harmed him. The defendant appeared to have reconciled with the victim and was described as treating him like a son.
Throughout this time period, however, the defendant contacted different people in an effort to find someone who would kill the victim prior to the kidnapping and assault trial. Two of these individuals testified at the trial in this case. One testified that he refused the defendant's request to kill the victim.
The second man, Jeff Cayouette, testified under a grant of immunity that he had agreed to murder the victim in exchange for a vintage motorcycle. According to Cayouette, the defendant supplied him with a loaded handgun to commit the crime. In October 1992, after receiving the gun, Cayouette asked the victim to come along with him to buy some drugs. He then drove the victim to a suburban residential area. Cayouette parked in the residential area and talked with the victim for over an hour as they waited to meet their drug contact. While they were waiting, Cayouette asked the victim to help him check his car's fan belt. When the victim got out of the car to look under the hood, Cayouette pulled out a gun and shot at him three times. All three shots missed, however, and the victim was able to run away. The victim escaped to a nearby house and telephoned the police, who later found shell casings and other evidence supporting his report of the shooting attempt. No charges were filed in the incident.
The gunman in this case, John Swiger, knew the victim through the defendant's drug operation for about one month before the murder occurred. Swiger told the defendant and his associates that he was an enforcer for a motorcycle gang. At trial, Swiger's girlfriend testified to overhearing conversations between the defendant and Swiger in which the two men agreed that Swiger would commit the murder. The defendant allegedly promised to pay Swiger $5000 before and $5000 after the murder took place but it is not clear from the record how much money, if any, changed hands. In his statement admitted into evidence at the trial, Swiger claimed that he was compelled to follow through with the murder because he feared that otherwise the defendant would harm his girlfriend and her children. At other times, however, Swiger claimed to have committed the murder as an act of friendship to help the defendant.
According to Swiger, the defendant provided him with a handgun to use as the murder weapon. After the crime, the defendant dipped the gun in acid and helped Swiger dispose of it by throwing it into a stream. Following the explicit directions given by Swiger, the police recovered the gun. Ballistic tests confirmed that it was the murder weapon and it was placed into evidence at trial.
On the day of the murder, one of the defendant's close associates, Corey Ivey, took the victim, his girlfriend, and a sixteen-year old girl, Tina Parks, out to dinner. Ivey drove the victim, his girlfriend and Parks to dinner in the defendant's truck. Later the same evening, the two couples returned to the defendant's house. The defendant was at home sleeping on the living room couch when they arrived. The defendant purportedly had injured his back and was taking muscle-relaxing drugs that made him drowsy. It was the prosecution's theory that the defendant feigned the injury to provide himself with an alibi for the time when the planned murder occurred. Shortly after the two couples entered the house, the defendant went to sleep in a bedroom and was asleep when the murder was committed.
The murder plan, as arranged by the defendant, required Ivey to send the victim on an errand in the defendant's truck and to notify Swiger when the victim was about to leave so that Swiger could drive to the defendant's house and shoot the victim. Swiger lived just over a mile from the defendant's home. The murder occurred as planned except that Parks accompanied the victim on the errand. Shortly after the two walked out of the front door, Swiger fired two shots, killing the victim instantly. Parks was very close to the path of the gunshots but apparently did not see the shooter. She immediately returned to the house and informed the others about the shooting. Subsequently the police were called and they commenced their investigation.
Shortly after the murder, the police interviewed Swiger and his girlfriend, both of whom denied any involvement in the crime. The couple informed the police that they intended to return to Tennessee with their children and Parks, the only witness to the murder. Soon after the police interview, they moved to Tennessee as planned.
The police investigation of the murder stalled and no charges were filed. In January 1994, the defendant was convicted of kidnapping and assaulting the victim in the 1992 New Year's Eve abduction. The murder case, however, remained unresolved for another year. The investigation was reactivated only after Tennessee law enforcement officials notified Colorado officials of reports that Swiger had been bragging about committing a murder in Colorado. This information led two Aurora police officers to travel to Tennessee to interview Swiger, who was being held on robbery and attempted murder charges in an unrelated crime.
Swiger was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to being interviewed by the officers. During the course of the interview, Swiger admitted that he murdered the victim after being solicited to do so by the defendant. The interview was recorded on audiotape and was also transcribed. In addition, Swiger wrote and signed a short confession. At the defendant's trial, the tape recording was played for the jury although it is not in the record on appeal. The transcript of the interview and the written statement also were admitted into evidence. It is the admission of this evidence (collectively referred to as Swiger's statement) that is at issue in the case now before us.
II.
We agree with the court of appeals' conclusion that Swiger's statement falls within the exception to the hearsay rule for declarations against penal interest by an unavailable witness.See CRE 804(b)(3). Swiger refused to testify at trial, asserting his Fifth Amendment privilege against self-incrimination, and as such was an unavailable witness. See Lee v. Illinois, 476 U.S. 530, 549-50 (1986). Also, by making the statement, Swiger clearly exposed himself to liability for murdering the victim. Therefore, we address our review to the court of appeals' analysis of whether the admission of Swiger's statement violated the defendant's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
CRE 804(b)(3) defines a statement against interest as follows:
A statement which . . . at the time of its making . . . so far tended to subject [the declarant] to . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.
A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
The defendant premised his argument on his Sixth Amendment right under the United States Constitution "to be confronted with the witnesses against him."
III.
Although an out-of-court statement may be admissible because it falls within an exception to the hearsay rule, the statement nevertheless must be excluded at a criminal trial if admitting it into evidence would deprive the defendant of his constitutional right to be confronted with the witnesses against him. U.S. Const. amend VI; People v. Newton, 966 P.2d 563, 572-73 (Colo. 1998); Blecha v. People, 962 P.2d 931, 941 (Colo. 1988); see also Dutton v. Evans, 400 U.S. 74, 80-82 (1970); Pointer v. Texas, 380 U.S. 400, 403 (1965) (applying the Sixth Amendment right to confront witnesses to state criminal prosecutions). The Confrontation Clause only permits the admission of hearsay evidence where "`the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility.'" Lilly v. Virginia, 527 U.S. 116, 136 (1999) (quoting Idaho v. Wright, 497 U.S. 805, 820 (1990)). To meet this requirement, out-of-court declarations offered against a defendant in a criminal prosecution are admissible only if the prosecution demonstrates that the declarant is unavailable to testify and the declarations either fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980) (creating athe two-part test wherebyfor determining whether a hearsay statement is considered sufficiently dependable to be admitted into evidence without the rigorous testing of cross-examination) if (1) it falls within a firmly rooted hearsay exception, or (2) it contains particularized guarantees of trustworthiness); see also Newton, 966 P.2d at 574 n. 13; Blecha, 962 P.2d at 941.
Statements that fall within a firmly rooted hearsay exception are considered to be trustworthy such that cross-examination would not add to their reliability. Idaho v. Wright, 497 U.S. 805, 820-21 (1990).
It is undisputed that at the defendant's trial Swiger, having declared his intent to exercise his constitutional right against self-incrimination, was unavailable to testify for purposes of our Confrontation Clause analysis. The People argue that Swiger's statement was admissible because it fell within a firmly rooted exception to the hearsay rule, namely the exception for declarations against interest by an unavailable witness. See CRE 804(b)(3). Under the facts of this case, we reject that contention. We then examine the second prong of the Roberts test and find that the statement is admissible because it has adequate guarantees of trustworthiness.
A.
Our previous case law has implied that Colorado's hearsay exception for statements against interest by an unavailable witness is not firmly rooted. Newton, 966 P.2d at 574 n. 13 (Colo. 1998); see also People v. Drake, 785 P.2d 1253, 1256 (Colo. 1989) (requiring independent evidence to show that a statement against interest that inculpated the accused was reliable, thereby implicitly recognizing that CRE 804(b)(3) is not a firmly rooted exception to the hearsay rule); People v. Fincham, 799 P.2d 419, 422 (Colo.App. 1990) ("While it is true that reliability may be inferred where the evidence falls within a firmly rooted exception, a declaration against penal interest is too large a class for meaningful Confrontation Clause analysis.") (citation omitted). Notwithstanding these cases, the People argue that the Supreme Court has left open the possibility that the hearsay exception for declarations against interest by an unavailable witness may be considered a firmly rooted hearsay exception when the statement at issue is "genuinely self-inculpatory." Lilly, 527 U.S. at 146 (Rehnquist, C.J., concurring).
In Lilly, the defendant, Benjamin Lilly ("Benjamin"), went on a crime spree with his brother Mark Lilly ("Mark") and his brother's Mark's roommate. Lilly, 527 U.S. at 120. Over the course of two days, the trio committed a string of robberies and thefts. Id. When their car broke down, the three men stole a car and abducted and murdered the car's owner. Id.
After the three men were taken into custody, Mark made a statement to the police in which he confessed to being involved in several of the minor thefts. Id. at 121. Nevertheless, he maintained that he took no part in the more serious thefts or the murder. Id. Mark also stressed that he was drunk during the entire crime spree. Id. Police officers informed Mark that he faced a life sentence unless he broke "family ties." Id. In response, Mark acknowledged that he would be sent to the penitentiary for his involvement in the crime spree, however, he informed the officers that it was his brother Benjamin who committed the more serious crimes including the murder. Id.
At Benjamin's subsequent trial for capital murder, Mark exercised his Fifth Amendment right against self-incrimination and declined to testify. Id. Over Benjamin's objections, the trial court admitted into evidence an audio recording of Mark's statement. Id. at 122. The court ruled the recording was admissible under the exception to Virginia's hearsay rule for declarations against interest made by an unavailable witness. Id. at 121-22. The Supreme Court of Virginia upheld Benjamin's conviction, finding that Mark's statement was a statement against interest by an unavailable witness and therefore fell within Virginia's declaration-against-interest exception to the hearsay rule. Id. at 122. The court also held that Virginia's declaration against interest hearsay exception was a firmly rooted hearsay exception so that the admission of a statement against interest would not violate the Confrontation Clause. Id.
In a plurality decision, the Supreme Court reversed the judgment and remanded the case for a new trial. Id. at 140. The court noted that statements falling within a hearsay exception are admissible only if the hearsay exception at issue is a firmly rooted exception or if the statement is supported by adequate guarantees of trustworthiness. Id. at 124-25. Four justices held that an accomplice's confession, which inculpates the criminal defendant, does not fall within a firmly rooted hearsay exception.Id. at 134. (Stevens, J., delivering an opinion in which Souter, Ginsburg, and Breyer, JJ., joined). Therefore, the four justices held that the confession was inadmissible under the Confrontation Clause unless there was evidence in the record guaranteeing its trustworthiness. Id. The justices found that there were not adequate guarantees of trustworthiness in the record and therefore reversed the Virginia Supreme Court's decision. Id. 139-40.
Three justices found that those portions of Mark Lilly's statement that incriminated his brother were not "genuinely self-inculpatory" and would have left open the issue of whether "custodial confessions that equally inculpate both the declarant and the defendant" are within a firmly rooted hearsay exception.Id. at 146 (Rehnquist, C.J., O'Connor, Kennedy, JJ., concurring) (emphasis added). Two justices concurred separately. Justice Scalia concluded that the introduction at trial of a tape recording of the declarant's statement, in which he stated that the defendant committed the charged murder, was a "paradigmatic Confrontation Clause violation." Id. at 143 (Scalia, J., concurring). Justice Thomas agreed with Chief Justice Rehnquist, finding that "the lower courts did not analyze the confession under the second prong of the Roberts inquiry . . . and therefore [I] see no reason for the plurality to address an issue upon which those courts did not pass." Id. at 143-44 (Thomas, J., concurring) (quotations and citation omitted).
Prior to Lilly, the Supreme Court held that an accomplice's statement against interest, made to a fellow inmate, inculpating a co-defendant was admissible and did not violate the Confrontation Clause. Dutton, 400 U.S. at 86-89. Confessions made to fellow prisoners, family members, and friends are distinguishable from custodial confessions taken by law enforcement officers with a view to prosecution. See Lilly, at 146-47 (Rehnquist, C.J., concurring). Therefore, even after Lilly, such confessions may be considered as falling within a firmly rooted hearsay exception. The case now before us is something of a hybrid. Swiger's original admissions were made to acquaintances but the evidence admitted at trial was his custodial confession to law enforcement personnel.
The People argue that we should follow the decision of the New Mexico Supreme Court in State v. Gonzales, in which the court found that a statement against interest that equally inculpated the declarant and the accused fell within a firmly rooted hearsay exception. 989 P.2d 419, 423-24 (N.M. 1999). Gonzales, however, involved a statement by a co-defendant made to fellow gang members, not to the police while the declarant was in custody. 989 P.2d at 421. As discussed above, such statements against interest may be considered to come within a firmly rooted exception to the hearsay rule. See Lilly, 527 U.S. at 147 (Rehnquist, C.J., concurring) ("[S]tatements to fellow prisoners, like confessions to family members or friends, bear sufficient indicia of reliability to be placed before a jury without confrontation of the declarant."); cf. Dutton, 400 U.S. at 87 (considering the factor that a statement against interest made to a fellow prisoner was not made in the "coercive atmosphere of official interrogation"). Gonzales does not address the fact situation contained in this case. Here, although Swiger came to the attention of the police because of confessions he made to acquaintances, the actual statement admitted into evidence was made by Swiger, the unavailable declarant, to police officers during custodial interrogation. Thus, the facts of this case do not fit within the narrow category of "firmly rooted" hearsay that the Supreme Court has suggested may exist for a co-defendant's out-of-court statement.
The one area of agreement in Lilly is that custodial confessions by a co-defendant inculpating the accused are viewed with "special suspicion" because the co-defendant has a powerful motivation to exonerate himself and implicate the defendant.Lilly, 527 U.S. at 131-32, 146. Indeed, the Supreme Court has consistently found that an accomplice's custodial confession, which incriminates the accused, is to be viewed with suspicion and considered presumptively untrustworthy. Lee, 476 U.S. at 541;Douglas v. Alabama, 380 U.S. 415, 419 (1965); Crawford v. United States, 212 U.S. 183, 204 (1909); see also Williamson v. United States, 512 U.S. 594, 599-601 (1994). Likewise, when considering statements against interest made by a co-defendant while in custody, this court has looked for indicia of reliability to overcome the presumptive unreliability of these statements.Drake, 785 P.2d at 1256.
We agree that a co-defendant's statements are presumptively unreliable in these situations because of the strongmotivationinterest a co-defendant has in exculpating his actions while at the same time inculpating another defendant. We also find that such statements are admissible only if they are supported by guarantees of trustworthiness. Therefore, we conclude that a statement against interest by a co-defendant made during custodial interrogation does not fall within a firmly rooted hearsay exception.
Having determined that Swiger's custodial confession does not fall within a firmly rooted hearsay exception, we now must decide whether the statement has sufficient guarantees of trustworthiness to be admissible. Lilly, 527 U.S. at 134 (finding that although an accomplice's statement inculpating the defendant is not within a deeply rooted hearsay exception such a statement may be admissible if it satisfies the second prong of the Roberts test). We now proceed to that next step.
The presumptive unreliability of a co-defendant's confession may be rebutted. Lilly, 527 U.S. at 137; Lee v. Illinois, 476 U.S. 530, 543 (1986). This presumption may be rebutted and the statement against interest admitted if the co-defendant's statement is genuinely self-inculpatory and is supported by guarantees of trustworthiness. Earnest v. Dorsey, 87 F.3d 1123, 1134 (10th Cir. 1996) (finding that the admission of an accomplice's confession that was "truly self-inculpatory" did not violate the Confrontation Clause); Gabow v. Commonwealth, 34 S.W.3d 63, 78-79 (Ky. 2000) (stating that when a statement is "truly self-inculpatory" this is a guarantee of trustworthiness);State v. Marshall, 737 N.E.2d 1005, 1009 (Ohio Ct.App. 2000) ("A voluntary confession, not made pursuant to a deal with the prosecution, and which implicates both the accomplice and the defendant has sufficient indicia of reliability."); State v. Franco, 950 P.2d 348, 353 (Or.Ct.App. 1997) (accomplice's confession admissible where accomplice exposed himself to equally serious criminal liability); Brown v. State, 953 P.2d 1170, 1179-80 (Wyo. 1998) (affirming trial court's admission of portions of accomplice's statements that implicated him equally with defendant); see also United States v. Dolah, 245 F.3d 98, 104-05 (2d Cir. 2001) (stating that the court has "regularly approved" of the admission of statements from accomplices even when the government has played a role in obtaining them); United States v. Gomez, 191 F.3d 1214, 1222 (10th Cir. 1999).
B.
The question before us then is whether Swiger's statement bore sufficient guarantees of trustworthiness to satisfy the second prong of the Roberts test so that its admission does not violate the Confrontation Clause. Lilly, 527 U.S. at 133-34 (finding that while accomplice confessions inculpating a defendant are presumptively unreliable, there is no "blanket ban" on such statements and they are admissible if they meet the second prong of the Roberts test); United States v. Gomez, 191 F.3d 1214, 1222 (10th Cir. 1999) (stating that accomplice confessions are admissible if they have "adequate indicia of reliability"). To decide that question, we look to the totality of the circumstances surrounding the making of the statement. Wright, 497 U.S. at 820-21. To satisfy constitutional standards and to rebut the presumption of unreliability, hearsay evidence must possess "indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." Id. at 822; Newton, 966 P.2d at 574. However, the Supreme Court has not provided a test for determining whether guarantees of trustworthiness exist and has stated that courts have "considerable leeway in their consideration of appropriate factors." Wright, 497 U.S. at 822.
The analysis of whether a hearsay statement is sufficiently reliable to be admissible under the Confrontation Clause is distinct from the analysis for admissibility of evidence under CRE 804(b)(3). Newton, 966 P.2d at 574; see also Dutton, 400 U.S. at 81-82. However, prior cases analyzing the trustworthiness of hearsay statements can provide us with guidance.
Our cases have identified several factors to consider when assessing the trustworthiness of a hearsay statement, including: the nature and character of the statement; the relationship between the parties to the statement; the declarant's probable motivations for making the statement; and the circumstances under which the statement was made. People v. Fuller, 788 P.2d at 741, 745 (Colo. 1990). We also have taken into account "where and when the statement was made, to whom the statement was made, what prompted the statement, how the statement was made, and what the statement contained." Newton, 966 P.2d at 576. In analyzing the trustworthiness of a hearsay statement for Confrontation Clause purposes, the Tenth Circuit has considered the following indicia of reliability: (1) whether the statement is detailed; (2) whether the statement was made voluntarily or was coerced; (3) whether the declarant was in a position to have personal knowledge of the described events in the statement; (4) whether the statement was made soon after the described events; and (5) whether the declarant had a motivation to inculpate the defendant. Gomez, 191 F.3d at 1222-23; see also Earnest v. Dorsey, 87 F.3d 1123, 1134 (10th Cir. 1996); (observing that factors that support a finding of trustworthiness include: (1) whether the statement was truly inculpatory; (2) the amount of detail contained in the statement; (3) whether the statement was made voluntarily, looking at whether law enforcement officers threatened or coerced the confession; (4) whether the confession was obtained in exchange for an offer of leniency; and (5) the mental and physical condition of the accomplice when the confession was made).
When evaluating an accomplice's confession, the most important determination as to its trustworthiness is whether the statement at issue is genuinely self-inculpatory or whether it shifts the blame from the confessor to the defendant. See Lilly, 527 U.S. at 146 (Rehnquist, C.J., concurring) (suggesting that "custodial confessions that equally inculpate both the declarant and the defendant" may even satisfy "a firmly rooted hearsay exception underRoberts") (emphasis added); see also Williamson, 512 U.S. at 605 ("[T]he very fact that a statement is genuinely self-inculpatory . . . is itself one of the guarantees of trustworthiness that makes a statement admissible under the Confrontation Clause.") (emphasis added); United States v. Dolah, 245 F.3d 98, 104 (2d Cir. 2001) (viewing Lilly as rejecting admission of an accomplice's confession only because it was largely non-self-inculpatory). We stress, however, that an evaluation as to whether a statement is genuinely self-inculpatory is only one of the factors to be analyzed and is not by itself dispositive. See Williamson, 512 U.S. at 605.
In this case, Swiger admitted in his confession that he alone shot and killed the victim. He did not minimize his involvement in the murder nor did he shift the responsibility for committing the murder to the defendant.
This case is clearly distinguishable from Lilly, where the accomplice confessed to being involved in a crime spree with his co-defendants, which included robberies and a murder, but denied any involvement in the murder, the most serious crime committed.Lilly, 527 U.S. at 121. In our view, the confession in Lilly was not genuinely self-inculpatory. We also find that many of the cases decided after Lilly, which have rejected the admission of a co-defendant's confession, either involved statements that were not genuinely self-inculpatory or statements that were made in the belief that the co-defendant would receive a benefit. See United States v. Castelan, 219 F.3d 690, 695 (7th Cir. 2000) (co-defendant asked if his assistance would help him); United States v. Gomez, 191 F.3d 1214, at 1223 (10th Cir. 1999)(co-defendants informed that their cooperation would be beneficial); State v. Sheets, 618 N.W.2d 117, 124-25, 133 (Neb. 2000) (co-defendant's confession inculpated defendant as the person who committed the rape and murder while co-defendant was present).
Swiger's statements inculpating the defendant are closely intertwined with the self-inculpatory portions of his confession. His description of the defendant's involvement in the murder provided the police investigators with Swiger's motive for killing the victim and explained how Swiger carried out the murder. In addition, Swiger's explanation of how he and the defendant discussed and planned the murder not only inculpated the defendant, it also augmented his own guilt by showing that the murder was premeditated. This dual inculpation distinguishes cases in which the parts of an accomplice's statement inculpating the defendant do not also inculpate the accomplice but rather tend to exculpate the accomplice by shifting the majority of the blame to the defendant. See, e.g., Lilly, 527 U.S. at 121 (part of accomplice's confession inculpating the defendant served to lessen accomplice's guilt by explaining that the defendant, not the accomplice, committed the murder); State v. Sheets, 618 N.W.2d 117, 133 (Neb. 2000) (accomplice acknowledged he was present during the crime but that the defendant committed the rape and murder).
The only part of Swiger's confession that in any way minimized his culpability was his naked assertion that he could not withdraw from his agreement with the defendant to murder the victim because he believed that if he did so, the defendant would harm his family. Swiger did not provide details about this alleged threat. While such an explanation may be designed to invoke sympathy, it does not diminish the fact that Swiger admitted in his statement that he was solely responsible, without any coercion on the day in question, for driving to the defendant's house and murdering the victim.
Nothing in the record suggests that Swiger thought his claim of coercion would exonerate him. In fact, it is difficult to imagine a more genuinely self-inculpatory statement than that given by Swiger. After being read his Miranda rights and being expressly informed that no lenient treatment or deals would be offered, Swiger confessed to police investigators that he committed the premeditated murder of the victim.
Furthermore, the record shows that Swiger was aware that confessing to killing the victim would lead to severe consequences regardless of his motive for committing the murder. Prior to confessing, Swiger stated that his confession would lead to him spending "the rest of my life in jail." Swiger also acknowledged that if he confessed, he would never live with his family again.
Continuing our analysis, we recognize that, as in Lilly, Swiger's confession was made to police officers while being interviewed and asked some leading questions. However, we find that this case is clearly distinguishable from Lilly. In Lilly, the accomplice who made the confession was in custody facing charges after being apprehended for his involvement in a crime spree. 527 U.S. at 121. Police officers told the accomplice that he was about to be charged and that if he wanted to avoid a life sentence he had "better start talking." Id. The Supreme Court stated that, "[w]hen a suspect is in custody for his obvious involvement in serious crimes, his knowledge that anything he says may be used against him militates against depending on his veracity." Id. at 138 (emphasis added).
In this case, however, Swiger was not being held in custody in connection with the victim's murder. In fact, two years had passed since the murder, the investigation was inactive, and the police had not interviewed Swiger since his departure from Colorado a few days after the murder. To an objective observer, it would appear that Swiger successfully escaped detection for the crime by fleeing the state and taking with him the only known eyewitness to the crime. Apart from informing Swiger that witnesses had come forward stating that they had heard Swiger bragging about his involvement in a murder, the police investigators did not tell Swiger that they had any other evidence linking him to the victim's murder. Thus, this case is clearly distinguishable from Lilly. See United States v. Shea, 211 F.3d 658, 669 (1st Cir. 2000) ("Lilly's main concern was with statements in which . . . the declarant admits only what the authorities are already capable of proving against him and seeks to shift the principal blame to another.") (emphasis added). In his statement, Swiger acknowledged that prior to his arrest by Tennessee law enforcement officers he had confessed his involvement in the victim's shooting to acquaintances in Tennessee. Thus, Swiger was not being detained for his involvement in the victim's murder and did not have the same outside pressures that existed in Lilly to make a statement to the investigating police officers. Whatever caused Swiger to start talking about the murder in the first place came from within himself and was not the result of government action.
In United States v. Papajohn, the court distinguished the case at issue from Lilly because the declarant was not arrested or charged with a crime prior to making his statement and therefore did not have "[t]he obvious incentive that the captured accomplice in Lilly had to shift blame." 212 F.3d 1112, 1119 (8th Cir. 2000); see also Brown v. State, 953 P.2d 1170, 1179 (Wyo. 1998) (fact that accomplice was not under arrest when he made statement and voluntarily continued to provide information after he had been given Miranda warnings supported a finding that the statement was trustworthy).
Although police investigators did use some leading questions in the interview, Swiger was not coerced and no improper tactics were used. From the record there is no reason to believe that Swiger's statement was anything but voluntary. The police officers interviewing Swiger expressly informed him on several occasions that he would not receive any deals in exchange for his statement. See Gomez, 191 F.3d at 1223 (acknowledging that absence of an offer of leniency is an important indicator of reliability). Furthermore, Swiger did not inquire as to any possible benefit he would receive for cooperating with the investigating officers and making his confession. See United States v. Castelan, 219 F.3d 690, 695-96 (7th Cir. 2000) (finding that custodial confession lacked inherent guarantees of trustworthiness because declarant asked police investigators if he would benefit from his cooperation).
The lack of any offers of leniency further distinguishes this case from Lilly, in which the confessing accomplice was told that if he did not make a statement he would be facing life imprisonment. Lilly, 527 U.S. at 121.
In the course of Swiger's confession, the investigating officers offered to protect his family from possible retaliation from the defendant. However, the record does not support an assumption that Swiger's confession was hinged on this offer of protection, or that the offer was an incentive for inculpating the defendant. A different factual scenario was presented in State v .Sheets, where the defendant was in custody for a racially motivated murder, and, as a result, was in fear for his safety while imprisoned. 618 N.W.2d 117, at 132. In exchange for police offers of protection, the defendant in that case offered a confession inculpating a co-defendant and signed a plea bargain agreement that provided for his protection. Id.
Other courts have taken into consideration whether a statement is highly detailed when determining its admissibility under the Confrontation Clause. Gomez, 191 F.3d at 1222-23;Earnest, 87 F.3d at 1134; Brown v. State, 953 P.2d 1170, 1180 (Wyo. 1998). The critical consideration when using detail as a basis for inferring the trustworthiness of a statement is the likelihood that the declarant could have fabricated the details without having witnessed them firsthand. See, e.g., Dana v. Dep't of Corrections, 958 F.2d 237, 239 (8th Cir. 1992) (finding it unlikely that a four-year-old child could manufacture graphic descriptions of sexual abuse). When considering detail, a court must look for indicia of trustworthiness regarding the reliability of the substance of the statement with the major focus on the parts of the statement recounting the defendant's involvement.See Earnest, 87 F.3d at 1134.
Examining the record, we find that Swiger provided many details concerning the murder and the defendant's participation that could be independently confirmed. Swiger described the defendant's motive for wanting the victim dead, i.e., to prevent the victim from testifying in the upcoming trial. Although he knew the defendant for only a short time, Swiger had detailed knowledge regarding how and why the defendant had kidnapped and assaulted the victim. He explained the reasons why the defendant believed that he, Swiger, would be willing to commit the murder, i.e., Swiger's self-described role as an enforcer for a motorcycle gang. Swiger provided details about how the defendant supplied him with the loaded gun used to commit the murder. He also depicted how the defendant dipped the murder weapon in acid and helped him dispose of the gun after the murder was committed. In his statement, Swiger gave detailed directions as to where he and the defendant disposed of the gun. Swiger also described previous plans that the defendant had considered for murdering the victim. Furthermore, Swiger explained that the murder was executed with the aid of one of the defendant's close associates who called Swiger and informed him, minutes before the murder occurred, when he would have the opportunity to shoot the victim.
Swiger described the actual shooting with specificity. He told of receiving a phone call from Ivey informing him that the victim was about to leave on an errand. He explained that he drove to the defendant's house, parked his car in the alley behind the house, and shot the victim from a position near the back gate. He described firing his gun at the victim as he walked out of the defendant's house toward the defendant's truck. Swiger stated that two shots struck the victim who immediately fell to the ground. From all of this detailed description, there can be no doubt that Swiger was the shooter. Similarly, Swiger displayed a depth of knowledge about the relationship between the defendant and the victim that gives credibility to his claim that the defendant planned the crime.
In our analysis, we must also consider whether the party making the confession had a motive, other than to shift the blame, for inculpating the defendant. See Gomez, 191 F.3d at 1222;Earnest, 87 F.3d at 1134. Swiger's statement provides us with no reason to believe that there was any animosity between Swiger and the defendant. In the statement, Swiger says that the defendant was one of the first people he met when he moved to Colorado and that he regularly socialized with the defendant. After the murder, the defendant even sent Swiger some money to help him rent a house. We also observe that Swiger's statement contained no hint that any animosity existed between Swiger and the victim prior to Swiger's confession.
We recognize that in his statement Swiger may have attempted to minimize his girlfriend's involvement in the murder. Swiger's assertion that he sent his girlfriend to a liquor store while he performed the murder conflicted with the fact that a licensed liquor store would have been closed on Sunday, the day that the murder occurred. We do not find, however, that this interest was served in any way by inculpating the defendant and thus this motivation raises no serious concerns regarding the trustworthiness of the part of Swiger's statement that inculpates the defendant. More importantly, Swiger stated that he knew about the 1992 New Year's Eve kidnapping and violent assault carried out by the defendant and his associates against the victim. Therefore, he was well aware that he was inculpating someone who, along with his associates, was very dangerous and would retaliate if crossed. Thus, Swiger knew that his statement could very well put himself and his family in danger, providing Swiger with a strong incentive to avoid inculpating the defendant. That Swiger acted in the face of such knowledge supports a finding of trustworthiness regarding his statement.
Swiger received no promises of preferential treatment for his girlfriend from the investigating officers, only assurances that if "[Swiger's girlfriend] had nothing to do with this . . . then we're not gonna do anything to her."
Finally, although the record shows that Swiger was very emotional during his confession, there is no evidence that he was mentally or physically unstable. Thus, from our evaluation of Swiger's statement and the circumstances surrounding the making of the statement, we find that it was supported by guarantees of trustworthiness. Most importantly, we find that the statement was genuinely self-inculpatory and was not designed to shift the blame to the defendant or to curry favor with law enforcement officials.
IV.
In summary, we hold that defendant's rights under the Confrontation Clause were not violated when the trial court admitted Swiger's confession into evidence. We therefore affirm the court of appeals' judgment upholding the defendant's convictions.