Opinion
No. 00SC12
March 18, 2002 Rehearing Denied April 22, 2002.
Justice COATS would grant the Petition for Rehearing.
Certiorari to the Colorado Court of Appeals, Court of Appeals No. 98CA448.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
No. 00SC12 Bernal v. People : Out-of-Court Identification — Photo Array —Impermissibly Suggestive — Hearsay Statement — CRE 804(b)(3) —Inculpatory Statement — Inferentially Inculpatory Statement —Confrontation Clause — Constitutional Harmless Error
The supreme court holds that in determining whether an out-of-court identification is admissible, a trial court must utilize a two-part analysis. First, a trial court must determine whether the photo array was impermissibly suggestive, which a defendant bears the burden of showing. Second, if the trial court finds the photo array to be impermissibly suggestive, the burden shifts to the People to demonstrate that, despite its improper suggestiveness, the identification was nevertheless reliable under the totality of the circumstances. Applying these principles to this case, the supreme court holds that the photo array was impermissibly suggestive and reverses the judgment of the court of appeals. Proceeding to the second part of the analysis, the court finds that the trial court failed to make adequate factual findings regarding the reliability of the impermissibly suggestive out-of-court identification and remands for further fact finding.
The supreme court also concludes that a co-defendant's statement offered against the defendant pursuant to the statement against interest exception to the hearsay rule, codified in CRE 804(b)(3), was inferentially inculpatory and did not satisfy the Confrontation Clause's requirement of trustworthiness and reliability. The court finds that the first and second requirements of 804(b)(3) were satisfied, namely that the declarant was unavailable and the statement offered tended to subject the declarant to criminal liability. The court reaffirms that when a statement against interest inculpates a defendant, the Confrontation Clause analysis is incorporated into the third requirement of CRE 804(b)(3) that corroborating circumstances demonstrate the trustworthiness of the statement. Although the statement was improperly admitted in violation of the Confrontation Clause, the court holds that such admission was constitutional harmless error.
David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.
Defendant Jesse Bernal (Bernal) was convicted of second degree kidnapping, aggravated robbery, conspiracy to commit aggravated robbery, and second degree assault. The court of appeals affirmed his convictions in People v. Bernal, No. 98CA448 (Colo.Ct.App. Nov. 18, 1999) (not selected for official publication). We granted certiorari to consider two issues. First, Bernal contends that his due process right to a fair trial was violated by admission of testimony regarding an out-of-court identification based on an impermissibly suggestive photo array. Second, Bernal contends that the admission of a hearsay statement by his co-defendant violated his rights under the Confrontation Clause. We reverse in part, affirm in part, and remand.
Specifically, we granted certiorari to determine: (1) whether the court of appeals erred in holding that petitioner's due process right to a fair trial was not violated by the admission of testimony concerning an impermissibly suggestive photographic array; and (2) whether the court of appeals erred in holding that the violation of petitioner's confrontation rights in admitting the hearsay statements of a co-defendant was harmless beyond a reasonable doubt.
With regard to the first issue, we conclude that the photo array was impermissibly suggestive. Because we find that the trial court failed to make adequate factual findings regarding the reliability of the impermissibly suggestive out-of-court identification, we remand with directions to the trial court to make such findings consistent with this opinion.
With regard to the second issue, we conclude that the co-defendant's statement offered against Bernal pursuant to CRE 804(b)(3) was inferentially inculpatory and did not satisfy the Confrontation Clause's requirement of trustworthiness and reliability. On this issue, we also remand with directions.
I. Facts and Procedure
The facts as relayed in this section focus primarily on the circumstances surrounding the robbery and the out-of-court photo identification. Additional facts specific to the admission of the hearsay statement against Bernal will be provided as necessary in part III.
On the afternoon of December 12, 1996, two men, wearing baseball caps and sunglasses, robbed a credit union in Brighton, Colorado. Mandie McBride (McBride), an assistant manager, noticed a light blue or gray car pull up to the bank and saw two men exit the car and approach the credit union. McBride was sitting at her desk when the first man entered the credit union. At trial, McBride testified that she did not see the face of the man as he entered the credit union. The man approached her desk with a gun, grabbed her by the hair, and demanded to be taken to the vault. McBride testified that once the robber grabbed her by the hair, she did not see him anymore. The robber pushed McBride towards the vault, which was located next to the manager's office. McBride testified that while walking to the vault, she did not see the robber because he was behind her. When asked about the robber's facial features, McBride testified that she could not see the robber's eyes, and that she did not notice his ears, teeth, or chin. In fact, her testimony revealed that all she saw of the robber was his black hair and "puffy" cheeks.
At trial, McBride testified that she got a "slight" glance of the robber while they were in the vault.
The manager, Kathy Wagner (Wagner), was at her desk when the robber and McBride entered her office. At trial, Wagner testified that the robber was behind McBride when they entered her office. The robber instructed Wagner to go to the vault and he followed behind. When describing the robber's facial features, Wagner testified that she saw the robber's profile, but could not give any detailed description of the robber. Furthermore, the robber told the women not to look at him and struck them with the barrel of the gun when they did. Wagner opened the vault and gave him the cash in the vault, nearly $12,000. Once the man had the money, he left. During the robbery, a second man armed with a gun stood in the lobby and demanded that the two other credit union employees and a customer get on the floor. The robbery lasted no longer than several minutes and both women testified that everything happened quickly and that they were scared.
Immediately after the robbery, Wagner and McBride gave a statement to the police. Although the lighting in the credit union was good and both women had been trained to deal with robberies, they were unable to give a detailed description of the robber. Both women described his appearance as a "Hispanic" male with a medium complexion. Wagner expanded on this physical description by stating that the robber had a "rough" complexion. The eyewitnesses also described the robbers as "sounding Hispanic." The only other description given was an approximate height and weight of the robber. Other witnesses gave similar descriptions, and also described the robbers as being roughly the same height.
Soon after the robbery, the police located the car used by the robbers. Two baseball caps and two pairs of sunglasses were found in the car. Police investigators also procured physical evidence linking Bernal's co-defendant, Raymond Rodarte (Rodarte) to the car. Specifically, a hair removed from one of the baseball caps in the car was consistent with Rodarte's. The police developed the co-defendants as suspects, at least in part, from information provided by the car's owner, Daniel Tucker (Tucker). In particular, Tucker told police that he had previously met Rodarte. He also told police that his car had been stolen the night before but that a friend, Tano Torres (Torres), had a key and might have taken it. Tucker stated that when he discovered the car was missing, he paged Torres, who returned the call. Tucker's girlfriend, Walynda Marshall (Marshall) testified that Torres had called earlier that day; her caller ID revealed that Torres had called from a telephone identified as Rodarte's. Tucker further told the police that he had previously met Bernal through both Rodarte and Torres.
On January 28, 1997, approximately six weeks after the robbery, the witnesses were shown a photo array that consisted of six color photographs of young men arranged in two rows of three, with Bernal appearing in the middle of the top row. Bernal's photograph appears to be the only photograph of an "Hispanic" male, although one of the other photographs could be perceived as also depicting an "Hispanic" male. Bernal's photograph also stands out from the six as the only one with a clear white background. The other photographs have a neutrally colored venetian blind backdrop. Two of the young men in the photographs have blue eyes. Each of the photographs is only of the head and neck and reveals nothing of the height or weight of the young men. After examining the photo array for approximately two minutes, Wagner selected Bernal's photograph. McBride looked at the photo array for approximately one minute before selecting Bernal's picture.
Based on the above evidence, Bernal and Rodarte were arrested and charged with kidnapping, aggravated robbery, conspiracy to commit aggravated robbery, and second degree assault. Bernal and Rodarte were tried separately.
Prior to trial, defense counsel filed a motion to suppress evidence of the out-of-court identification of Bernal by Wagner and McBride. At the pretrial motions hearing, the prosecution presented Detective Grose (Grose). Although defense counsel had subpoenaed Wagner and McBride, the trial court refused to hear their testimony. After hearing Grose's testimony, the trial court stated that it was unnecessary for it to hear the testimony of Wagner and McBride, the eyewitnesses, to make its ruling.
A transcript of Wagner's testimony at the probable cause hearing was admitted into evidence at the motions hearing.
In ruling on the motion to suppress, the trial court inconsistently found the photo array to be both "not suggestive," and not "so impermissibly suggestive" as to require suppression of the out-of-court identification. Because the trial court's findings are extraordinarily limited, it is unclear what standard the court used to deny the motion. The trial court did state that the credit union had good lighting and, somewhat callously, that the "fact that the women were getting whacked with a gun would certainly focus their attention." However, by refusing to entertain the testimony of the eyewitnesses, the trial court implied that it did not think it necessary to address the reliability of the identification. The out-of-court identifications were thus admitted at trial.
At trial, the prosecution successfully sought to admit a hearsay statement made by Rodarte to Grose. Grose testified regarding several interviews he conducted with Rodarte on the day that Rodarte was arrested. The statements were given at the Brighton police station. Although Grose testified regarding several statements made by Rodarte, the statement at issue in this appeal was as follows: "He [Rodarte] admitted to taking the car, but adamantly denied being involved in the robbery." The trial court admitted the statement pursuant to CRE 804(b)(3), the "statement against interest" exception to the hearsay rule. The trial court made no findings regarding the reliability or trustworthiness of the statement pursuant to the Confrontation Clause.
Bernal was convicted on all counts and sentenced to forty-six years in prison. The court of appeals affirmed Bernal's convictions. With regard to the photo array, the court of appeals held that it was "not unduly suggestive" and the out-of-court identifications were thus properly admitted at trial. Bernal, No. 98CA448, slip op. at 4. A dissenting judge disagreed, opining that the photo array was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Id. at 24 (Casebolt, J., dissenting). With regard to the admission of Rodarte's statement under 804(b)(3), the court of appeals held that the trial court failed to undertake the required Confrontation Clause inquiry regarding whether the statement bore "particularized guarantees of trustworthiness," and therefore erroneously admitted the statement. However, the court of appeals found that the admission of the statement was constitutional harmless error. Id. at 7.
The court of appeals vacated Bernal's sentence, directing the trial court to re-sentence him within the presumptive range for second degree kidnapping. The court of appeals also directed the trial court to state its basic reasons and primary factual considerations in imposing its new sentence on all counts.
II. The Photo Array and Out-of-Court Identification
A. Standard of Review
As an initial matter, we address the standard of review required when reviewing the trial court's conclusion that the out-of-court identification procedure did not violate Bernal's due process rights. The ultimate question as to the constitutionality of pretrial identification procedures is a mixed question of law and fact. Sumner v. Mata, 455 U.S. 591, 597 (1982). Thus, while the trial court's findings of historical fact are entitled to deference, an appellate court may give different weight to those facts and may reach a different conclusion in light of the legal standard. Id.
B. Photo Lineups Generally
Suggestive lineups are disapproved because they increase the likelihood of misidentification and have, in the past, too often brought about the conviction of the innocent. In United States v. Wade, the United States Supreme Court observed:
A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. . . . Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.
388 U.S. 218, 228-29 (1967) (footnote omitted). Furthermore, the Supreme Court has noted that, once an eyewitness has chosen a suspect from a line-up, that witness is "not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial." Id. at 229. The danger of misidentification is further increased in prosecutions where the victim is the witness, such as in a robbery, because there is a particular hazard that a victim's understandable outrage may excite a vengeful or spiteful motive. Id. at 230.
Subsequent experience and empirical evidence support the Supreme Court's conclusions. For example, a study of forty cases in which the convicted persons were later exonerated through DNA testing revealed that ninety percent (90%) of the convictions were obtained, at least in part, by erroneous eyewitness identifications. Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law Hum. Behav. 603, 605 (1998). The study concluded that "mistaken eyewitness identification is responsible for more of these wrongful convictions than all other causes combined," and that "eyewitness identification evidence is among the least reliable forms of evidence and yet is persuasive to juries." Id. The study further demonstrated that "accuracy of description is a rather poor predictor of identification."Id. at 608. A different study revealed that "recognition accuracy was found to be poorer when the perpetrator was holding a weapon." Vaughn Tooley et al., Facial Recognition: Weapon Effect and Attentional Focus, 17 J. of Applied Social Psychology 845, 854 (1987).
C. The Two-Part Test for Determining Admissibility of Out-of-Court Photographic Identification
Recognizing the inherent dangers of pretrial identification, the United States Supreme Court set out the standard for viewing photographic displays in Simmons v. United States. The Supreme Court stated:
[E]ach case must be considered on its own facts and . . . convictions based on eye witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
390 U.S. 377, 384 (1968). This standard has developed into a two-part analysis. First, a court must determine whether the photo array was impermissibly suggestive, which the defendant has the burden of proving. Neil v. Biggers, 409 U.S. 188, 198 (1972); United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir. 1994). If this burden is not met, no further inquiry is necessary. Sanchez, 24 F.3d at 1262. Second, if the defendant's burden is met, the burden shifts to the People to show that despite the improper suggestiveness, the identification was nevertheless reliable under the "totality of the circumstances." Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Biggers, 409 U.S. at 199; Sanchez, 24 F.3d at 1261-62. It is important to note that these two steps must be completed separately; it is only necessary to reach the second step if the court first determines that the array was impermissibly suggestive.Sanchez, 24 F.3d 1262 .
In evaluating whether a pretrial photo identification procedure is impermissibly suggestive, a number of factors may be relevant. These include the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves. United States v. Wiseman, 172 F.3d 1196, 1208 (10th Cir. 1999); Sanchez, 24 F.3d at 1262. Although courts have held that a photo array with as few as six pictures is not per se a due process violation, see, e.g., United States v. Bennett, 409 F.2d 888, 898 (2d Cir. 1969), courts have recognized that the size of a photo array, specifically the number of pictures in it, is a factor affecting the weight a court gives to the irregularities in the array. Sanchez, 24 F.3d at 1262. The more pictures used in an array, the less likely it is that a minor difference, such as background color or texture, will have a prejudicial effect on selection. Id.
In contrast, when relatively few photographs are used in an array, minor differences such as background color make a picture stand out and can repeatedly draw a witness's eyes to that picture. Id. In Sanchez, the court noted:
Common sense dictates that slight irregularities are more likely to "jump out" at a witness when reviewing a single sheet of paper with only six photographs on it than at a witness reviewing a large mug book containing hundreds of photographs. Upon continued inspection, the witness may begin to believe that the "oddball" picture was taken under different circumstances than the others. This fact can suggest a number of things to the witness, the most dangerous of which is that the similar pictures were taken together to form a pool or control group, and that the one picture that stands out is the suspect.
Id. Thus, the fewer photographs used by the officers in a photo array, the closer the array must be scrutinized for suggestive irregularities. Id.
When the number of photographs shown has not been so small as to make the presentation itself unfairly suggestive, and there is nothing in the officials' manner of presentation that renders the procedure surrounding the array suggestive, the principal question is whether the picture of the accused, which matches descriptions given by the witness, so stood out from all of the other photographs as to "`suggest to an identifying witness that [that person] was more likely to be the culprit.'" Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir. 1986) (quotingUnited States v. Archibald, 734 F.2d 938, 940 (2d Cir. 1984)). In other words, the array must not be so limited that the defendant is the only one to match the witness's description of the perpetrator. United States v. Maldonado-Rivera, 922 F.2d 934, 974 (2d Cir. 1990).
The police do not have to provide a photo array containing only "exact replicas" of the defendant's picture; all that is required is that the "photos are matched by race, approximate age, facial hair, and a number of other characteristics."People v. Webster, 987 P.2d 836, 839 (Colo.Ct.App. 1998); People v. Borrego, 668 P.2d 21, 23 (Colo.Ct.App. 1983); United States v. Fernandez, 456 F.2d 638, 641 (2d Cir. 1972). Thus, a photo array in which the individual characteristics of the accused, such as race, stand in stark contrast to the other photographs is impermissibly suggestive. State v. Thamer, 777 P.2d 432, 435 (Utah 1989). But see Williams v. Weldon, 826 F.2d 1018, 1021 (11th Cir. 1987) ("[S]imply being of a different race or ethnic group from others placed in a lineup does not necessarily make the lineup impermissibly suggestive, especially where . . . the other individuals had roughly the same characteristics and features of the accused.").
In United States v. Fernandez, the court found that a photographic array was impermissibly suggestive when witnesses had described the bank robber as a light-skinned Black man with an Afro haircut, and of the six photographs presented, only that of the defendant showed a Black man having a light skin tone. 456 F.2d at 641-43. Similarly, in United States v. Gidley, 527 F.2d 1345, 1350 (5th Cir. 1976), the court found a photographic display impermissibly suggestive because none of the other pictures displayed the defendant's Asian appearance nor did any of the men pictured, except the two defendants, have long black hair. The court noted that "[a]nyone who had gotten a glimpse of two robbers with long black hair would have found only [the defendants'] pictures in this group to resemble those robbers." Id.
Although it is not required that all of the photographs in the array be uniform with respect to one given characteristic, Jarrett, 802 F.2d at 41, a photographic array that includes a photo that is unique in a manner directly related to an important identification factor may be held impermissibly suggestive. See Grubbs v. Hannigan, 982 F.2d 1483, 1490 (10th Cir. 1993) ("Although a photo-lineup is not necessarily suggestive merely because the individuals in the lineup differ in facial characteristics, . . . here the differences were either strikingly apparent, such as a swollen eye, or they related to an important component of [the victim's] description of her assailant, his hair style.").
If the court finds a photo array impermissibly suggestive, it must then proceed to the second step of the analysis and determine whether, under the totality of the circumstances, the suggestive procedure created a very substantial likelihood of misidentification. Manson, 432 U.S. at 116. The factors to be considered in determining whether, despite a suggestive array, the identification was nonetheless reliable are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199; People v. Monroe, 925 P.2d 767, 771-72 (Colo. 1996).
In conducting this analysis, a court must balance the suggestiveness of the procedures employed against indicia of reliability surrounding the identification to determine whether the identification should be suppressed. Manson, 432 U.S. at 114; Grubbs, 982 F.2d at 1490. Reliability is the linchpin in determining the admissibility of identification testimony. Manson, 432 at 114. As long as the totality of the circumstances does not indicate a very substantial likelihood of irreparable misidentification, no constitutional impediment to the admission of the identification testimony exists. Id. at 116.
D. Application of the Law to the Out-of-Court Identification in this Case
In this case, Bernal argues that his due process rights were violated by the admission of testimony concerning an impermissibly suggestive photo array. The determination of whether there was a violation of Bernal's due process rights requires the application of the two-part analysis described above.
Under the first part of the analysis, Bernal challenges the photographs themselves, arguing that they are impermissibly suggestive because, of the six men shown, he was the only obviously "Hispanic" man. Our examination of the photo array reveals it to be impermissibly suggestive. Our review of the record indicates that ethnicity was a controlling and overriding characteristic of the witnesses' description of the robber. In their initial descriptions to the police immediately after the robbery, none of the witnesses provided any sort of detailed description of the robber. Rather, their description was based on race and ethnicity: Both eyewitnesses stated that the robber was "Hispanic." The ethnicities of most of the other men in the photo array are conspicuously different, specifically not "Hispanic," so as to make the defendant's photo stand out as clearly different from the others.
Although the witnesses described the approximate height and weight of the robber, such descriptive information is not relevant to the photo array because the photos only depict the subjects' heads and shoulders.
Although it has been suggested that one of the men shown with Bernal "could possibly have been" "Hispanic", in the context of the descriptions given by the eyewitnesses in this case, this photograph is not similar to Bernal's. In this case, the witnesses chose to use the term "Hispanic." Because the term "Hispanic" can refer to people with different skin colors, eye colors, and hair colors, and even to people of different races, it might be considered to be a poor descriptive term. See generally Kevin R. Johnson, Race, Ethnicity Nationhood: "Melting Pot" or "`Ring of Fire'"?: Assimilation and the Mexican-American Experience, 85 Cal. L. Rev. 1259, 1291-92 (1997). However, when a witness uses the term "Hispanic" to describe a suspect it may reasonably be presumed that she is using that term to denote a person with discernable and distinctive physical characteristics that comprise the stereotype of an "Hispanic" individual. Here, only Bernal's photograph is stereotypical.
Although we disagree with the use of such stereotypes to homogenize what in reality is a multi-racial, diverse population, it is undisputed that the term "Hispanic" is used as a descriptive term and has, in essence, reduced this diverse group of individuals into one group. See Wendy Chung, Ethnicity and Organizational Diversity: A Study of Social Cognition and Psychological Climate Perception 59 (1997). Specifically, the stereotype has been described as "dark-complexioned with more indigenous features." Johnson, supra, at 1290-91. Some courts have described the stereotypical characteristics of someone who is "Hispanic" as "black hair, dark skin, and dark eyes." Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1038 (9th Cir. 1999); see also, e.g., United States v. Ramos, 753 F. Supp. 75, 76 (W.D.N.Y. 1990) ("light brown skin"); People v. Gonzalez, 685 N.E.2d 661, 663 (Ill.App.Ct. 1997) ("light brown skin, dark brown hair, and dark eyes"); State v. Mareno, 530 So.2d 593, 595 (La.Ct.App. 1988) ("a `kind of Hispanic appearance'" described as "an individual 5'7"-5'8", with an olive complexion, medium build, [and] brown hair"). Thus, although the photo array may not be perceived as suggestive to someone who is aware of the diversity of individuals in the "Hispanic" population, it is highly suggestive to a person who chooses to describe a person as "Hispanic" in the stereotypical sense of describing what many people consider a monolithic group. See Johnson, supra, at 1290.
Here, there is nothing to suggest that the witnesses meant anything other than the commonly understood, stereotypical characteristics of an "Hispanic" individual. Thus, we infer that "Hispanic," as used by the two eyewitnesses, was meant to describe the features of people of Mexican heritage, the predominant "Hispanic" population in the southwestern United States. See Ramos, 753 F. Supp. at 78 n. 5 ("It is apparent that appearing Mexican is the functional equivalent of appearing Hispanic."). The stark fact is that Bernal leaps out as the one person who is different because of his ethnicity, a judgment that can be made even without knowledge of what the witnesses said.
In addition, Bernal's photograph was the only one with a clear white background. The other photographs were taken against neutrally colored venetian blinds. This seemingly minor detail of the background compounds the already-mentioned deficiencies of the photo array because, as noted in Sanchez, the likely inference that Bernal's picture was taken under different circumstances suggests that the other photos were assembled to provide a pool or control group, as indeed they were.Wiseman, 172 F.3d at 1209. Moreover, the small number of photos in the array, which in this case consisted of six, cannot dilute the suggestiveness of the array. Id.
For these reasons, we conclude that the photo lineup is impermissibly suggestive.
Having found the pretrial identification procedure to be impermissibly suggestive, we must next proceed to the second step of the analysis, namely a determination whether, under the totality of the circumstances, the identification was nonetheless reliable. This determination involves consideration of the five factors identified by the Supreme Court in Biggers. Manson, 432 U.S. at 114; Biggers, 409 U.S. at 199.
As to the first two Biggers factors, the record is fairly well developed because these factors were pertinent to issues raised at trial. Thus, regarding the first Biggers factor, the opportunity of the witnesses to view the criminal at the time of the crime, the evidence showed that the robbery lasted several minutes and took place in a well-lighted area. However, there was also evidence that the robber was behind McBride during most of the robbery, and that McBride only got "slight" glances of the robber. In addition, the robber concealed his appearance with a baseball hat and sunglasses.
With regard to the second Biggers factor, the witnesses' degree of attention, the evidence showed that the witnesses had received training regarding robberies. In this case, however, the witnesses were instructed not to look at the robber, and when they did, he struck them with his weapon.
As to the rest of the Biggers factors, because the trial court failed to hear the offered testimony, the record is inadequate. Thus, regarding the third Biggers factor, the accuracy of the witnesses' prior description, the witnesses' initial descriptions to the police were very general. The witnesses described the robbers as roughly the same height, medium complexion, and "Hispanic." Wagner also described the robber as having a "rough" complexion. Because the witnesses were not allowed to testify at the suppression hearing, it is unclear what they meant by the term "Hispanic." In addition, there is nearly a foot of difference between the height of the two men arrested for the robbery. Rodarte measures five feet two inches tall, while Bernal is over six feet tall. And, contrary to Wagner's description, Bernal does not have a "rough" complexion. In fact, he was described as having a "very nice complexion."
Concerning the fourth Biggers factor, the level of certainty demonstrated by the witnesses at the confrontation, it is unclear what the witnesses' degree of certainty was when they chose Bernal's photograph. At the suppression hearing, Grose testified that the witnesses stated that they had made a positive identification. When defense counsel attempted to question Grose regarding the witnesses' level of certainty, the trial court intervened and refused to permit Grose to testify, stating: "They can't be any better than positive I don't think." The evidence only showed that Wagner chose Bernal's photograph after examining the array for two minutes and that McBride spent one minute reviewing the array before choosing Bernal.
Finally, with regard to the last Biggers factor, the length of time between the crime and the confrontation, there was a six-week gap between the robbery and the photo array. Again, because the witnesses were not allowed to give testimony, it is unclear how much weight should be placed upon this fact.
Given that the trial court failed to hear testimony and failed to make adequate factual findings, we cannot complete the review necessary to determine whether the out-of-court identification is, despite its suggestiveness, reliable. Accordingly, we remand to the trial court for a reliability determination. Upon remand, the trial court, in determining the reliability of the out-of-court identification, should not limit itself to the specific evidence we have just discussed. Instead, the court should, in addition to the above evidence, consider any new testimony that may be offered that it finds pertinent to theBiggers factors. For example, the trial court might inquire as to what the witnesses meant when they used the term "Hispanic" to describe the robber and whether they would describe any of the other five men depicted in the photo array as "Hispanic."
III. The Admissibility of Rodarte's Statement Against Interest
[48] In addition to the issue of the photo array, this case also involves a hearsay statement by Rodarte offered against Bernal at trial. The prosecution sought to have the statement admitted under the statement against interest exception to the hearsay rule, codified in CRE 804(b)(3).A. CRE 804(b)(3)
The statement against interest exception states, in relevant part:
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.
CRE 804(b)(3). The rule is predicated on "the principle of experience that a statement asserting a fact distinctly against one's interest is unlikely to be deliberately false or heedlessly incorrect." 5 John Wigmore, Wigmore on Evidence § 1457 (Chadbourn Rev. 1974). Thus, the statement's self-inculpatory nature is the basis of its presumed trustworthiness. Id. Colorado Rule of Evidence 804(b)(3) may be utilized only when the declarant is unavailable to testify at trial. CRE 804(b)(3); Blecha v. People, 962 P.2d 931, 939 (Colo. 1998). It is undisputed that Rodarte was unavailable for the purposes of CRE 804(b)(3).
Our determination in this case regarding the admissibility of Rodarte's statement is guided by our decision in People v. Newton, 966 P.2d 563 (Colo. 1998). In Newton, we discussed in great detail the scope and application of CRE 804(b)(3). More specifically, we were presented with the question of what the term "statement" in CRE 804(b)(3) should include. We held in Newton, in contrast to the United States Supreme Court's determination regarding the federal version of 804(b)(3), that under Colorado's version of 804(b)(3) a trial court may admit related, collaterally neutral statements made by the declarant in addition to the precise statement against penal interest. Compare Williamson v. United States, 512 U.S. 594, 600-01 (1994), with Newton, 966 P.2d at 566. Newton recognized that 804(b)(3) permits the admission of statements that both exculpate and inculpate the defendant (as opposed to the declarant) and articulated a different analysis for each type of statement against interest. Id. at 572-73.
We placed two limitations on the admissibility of a declarant's statement against interest, however: (1) a trial court should exclude any of the declarant's statements that are "so self-serving as to be unreliable," and (2) a trial court should exclude the declarant's entire narrative if it determines that the declarant's statement is unreliable because the declarant "had a significant motivation to curry favorable treatment." Newton, 966 P.2d at 566.
Although we have found no precedent or other authority that explicitly engages in the task of articulating standards for defining and distinguishing the terms "exculpatory" and "inculpatory," it is clear that a statement against interest may be classified as inculpatory as to the defendant even though on its face the statement does not directly inculpate the defendant. One scholar has defined an inculpatory statement very generally as one that "implicates both the declarant and the defendant in criminal activity and which is admitted against the defendant." Comment, Federal Rule of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Cal. L. Rev. 1189, 1190 n. 7 (1978) (cited in State v. Hoak, 692 P.2d 1174, 1178 (Idaho 1984)). Many courts have recognized that a statement against interest, even a self-inculpatory statement, may be properly classified as inculpatory as to the defendant. These cases characterize these inculpatory statements as "inferentially" inculpatory. See, e.g., Lilly v. Virginia, 527 U.S. 116, 131 (1999) (citing Lee v. Illinois, 475 U.S. 530, 544 n. 5 (1986)); Williamson, 512 U.S. at 603; Richardson v. Marsh, 481 U.S. 200, 208 (1987); Foster v. United States, 548 A.2d 1370 (D.C. 1988); Commonwealth v. Charles, 704 N.E.2d 1137, 1142 (Mass. 1999); People v. Banks, 475 N.W.2d 769, 773 (Mich. 1991). Because we conclude that Rodarte's statement inferentially inculpates Bernal, see discussion, infra, we apply the Newton analytical framework applicable to inculpatory statements.
Although some of these cases address a defendant's Confrontation Clause rights vis-à-vis a statement against interest and do not specifically address the statement against interest exception, they are nonetheless informative in crafting a workable concept of what statements can be characterized as "inculpatory" for both the 804(b)(3) analysis and the Confrontation Clause analysis.
With regard to a statement against interest that inculpates the defendant, Newton explained that the following three requirements of 804(b)(3) must be satisfied:
First, the witness must be unavailable as required by CRE 804(a). Second, the statement must tend to subject the declarant to criminal liability. . . . Third, the People must show by a preponderance of evidence that corroborating circumstances demonstrate the trustworthiness of the statement. In conducting this third inquiry, a trial court should limit its analysis to the circumstances surrounding the making of the statement and should not rely on other independent evidence that also implicates the defendant. Appropriate factors for a trial court to consider include: 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.
966 P.2d at 576 (citing State v. Wilson, 918 P.2d 826, 837-39 (Or. 1996) (outlining the above factors)) (emphasis added). Accordingly,Newton instructs that a trial court's assessment of the "corroborating circumstances" for an inculpatory statement, the third requirement of 804(b)(3), is the equivalent of an assessment pursuant to the Confrontation Clause. In requiring the satisfaction of a defendant's Confrontation Clause rights in order to find the third requirement of 804(b)(3) to be met, Newton recognized that a defendant's constitutional right to confrontation is directly implicated when a statement against interest inculpates the defendant under 804(b)(3):
Most courts that have required corroboration for inculpatory statements have done so out of concern that such statements comply with the Confrontation Clause. . . . It therefore makes sense that [804(b)(3)'s] corroboration requirement for inculpatory statements, which is rooted in the Confrontation Clause, complies with the Supreme Court's explanation in [Idaho v.] Wright[, 497 U.S. 805 (1990),] that the Confrontation Clause can only be satisfied by looking to the inherent trustworthiness surrounding the making of the statement.
In contrast, Newton, noting 804(b)(3)'s express language, held that when a statement is offered to exculpate a defendant, the "corroborating circumstances" requirement of 804(b)(3) may be satisfied by considering other independent evidence presented, as well as by considering the circumstances surrounding the making of the statement. Generally, whether a statement is inculpatory or exculpatory is revealed by which party is offering the statement: Ordinarily, the prosecution offers inculpatory statements and the defense offers exculpatory statements. When the defendant makes such an offer, he necessarily waives any Confrontation Clause objection.
B. The Confrontation Clause
Because Newton directs that the Confrontation Clause analysis is incorporated into the third 804(b)(3) requirement when the statement inculpates a defendant, we explain the Confrontation Clause and its requirements before assessing the admissibility of Rodarte's statements.
1. Trustworthiness and Reliability Generally
In Ohio v. Roberts, 448 U.S. 56 (1980), the United States Supreme Court determined that when an out-of-court statement fits into a "firmly rooted" exception to the hearsay rule, the reliability and trustworthiness of that statement "can be inferred without more."Roberts, 448 U.S. at 66. The Roberts Court held that when an out-of-court statement does not fall into a firmly rooted exception to the hearsay rule, the statement must bear "indicia of reliability," which is indicated by "a showing of particularized guarantees of trustworthiness."Id. Both this court and the Supreme Court have held that the statement against interest exception is not a firmly rooted exception to the hearsay rule. Stevens v. People, 29 P.3d 305, 313 (Colo. 2001); Lilly, 527 U.S. at 134.
In Idaho v. Wright, 497 U.S. 805 (1990), the Court explained that "particularized guarantees of trustworthiness" must be shown from the totality of the circumstances, but that "the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Wright, 497 U.S. at 819. The Wright Court went on to state: "In other words, if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial." Id. at 820. A court may not refer to other evidence at trial when assessing the particularized guarantees of trustworthiness. Id. at 822;see also Lilly, 527 U.S at 134-38. We have adopted the reasoning and conclusions of these Supreme Court cases with regard to our own 804(b)(3) and the Confrontation Clause. Stevens, 29 P.3d at 310 (citing Lilly,Wright, and Roberts).
2. Factors for Determining Trustworthiness and Reliability
Newton articulated the following factors for consideration in determining the trustworthiness of statements that inculpate the defendant: 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 575-76.
Stevens expanded the factors for consideration to include: 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.Stevens, 29 P.3d at 314 (citing People v. Fuller, 788 P.2d 741, 745 (Colo. 1990)). Stevens also held that although the most important determination regarding trustworthiness is whether the statement is genuinely self-inculpatory or whether it shifts blame to the defendant, this determination is not dispositive. Id. at 315.
Stevens noted other factors to assess whether a statement bears "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; (4) whether the statement was made soon after the described events; and (5) whether the declarant had a motivation to inculpate the defendant. Stevens, 29 P.3d at 314 (citing United States v. Gomez, 191 F.3d 1214, 1222-23 (10th Cir. 1999)). The Stevens court further articulated that the following factors may be considered: (1) whether the statement was truly inculpatory; (2) the amount of detail in the statement; (3) whether the statement was made voluntarily; (4) whether the confession was obtained in exchange for an offer of leniency; and (5) the mental and physical condition of the declarant. Id. (citing Earnest v. Dorsey, 87 F.3d 1123, 1134 (10th Cir. 1996)).
In addition to consideration of the foregoing factors, a determination regarding the trustworthiness of Rodarte's statement must be informed by the Supreme Court's conclusion that when a statement against interest inculpates a criminal defendant in addition to the declarant, as in a co-defendant situation, such a statement is "inherently unreliable" because "an accomplice often has considerable interest in `confessing and betraying his co-criminals.'" Lilly, 527 U.S. at 131, 119 S.Ct.1887 (citation omitted). The Supreme Court has also opined that "arrest statements by a co-defendant have traditionally been viewed with special suspicion." Lee, 476 U.S at 541. Our cases have followed the Supreme Court's assessment of statements by a codefendant, holding that such statements are inherently and presumptively unreliable. See, e.g.,Stevens, 29 P.3d at 313.
C. Application of the Law to Rodarte's Statement
1. Standard of Review
Appellate review of a possible Confrontation Clause violation is de novo. Lilly, 527 U.S. at 137. Here, the trial court held a hearing on the admissibility of Rodarte's statement. Grose testified regarding the circumstances surrounding the making of the statement, including such details as the layout of the police station, the procurement of Rodarte'sMiranda waiver, the tone of the interviews, and Rodarte's demeanor during the interviews. In addition, the trial court admitted into evidence the transcripts of the interviews. Accordingly, we conclude that the record is adequate for a de novo review.
2. The Nature of Rodarte's Statement
The specific statement at issue was made to Grose while Rodarte was in police custody: "He [Rodarte] admitted to taking the car, but adamantly denied being involved in the robbery." This statement was made in the context of a much longer narrative given by Rodarte to Grose. A review of the record demonstrates that the evidence admitted at trial, when considered as a whole, leads to the unavoidable conclusion that Rodarte's statement inferentially inculpated Bernal because it "implicates both the declarant and the defendant in criminal activity." Comment, supra, at 1190 n. 7.
Before Grose testified at trial, the employees of the credit union, other eyewitnesses to the robbery, and a police officer who arrived at the crime scene immediately after the robbery all testified. Through this testimony, both Rodarte and Bernal were identified as the men who committed the robbery. After these eyewitnesses testified, the People called Tucker, the owner of the stolen car, Marshall, Tucker's girlfriend at the time of the crimes, and Audra Ramirez, Rodarte's girlfriend at the time of the crimes. These three witnesses provided testimony that established that Tucker's car had been stolen the night before the robbery and was the car used in the robbery. These witnesses also tended to establish that Bernal and Rodarte were together the night before the robbery. After these acquaintances of Bernal and Rodarte testified, the People called agents from the Colorado Bureau of Investigation, who established that hair samples taken from the car used in the robbery matched those from Rodarte. Finally, the People called two detectives involved in the investigation of the robbery, one of whom was Grose.
Grose testified about his interview with Rodarte, during which Rodarte made the statement at issue here: "He [Rodarte] admitted to taking the car, but adamantly denied being involved in the robbery." Immediately after Grose testified as to Rodarte's statement, he testified about the statement Ramirez gave him. Grose's recounting of Ramirez's statement established several important facts inculpatory to Bernal. In particular, Grose's summary of Ramirez's statement put Bernal and Rodarte together the night before the robbery. The night before the robbery was also the night that Tucker's car, which was used in the robbery, was stolen. Grose also established that Ramirez told him that the night before the robbery, Rodarte and Bernal left the house together in one car, but returned separately in two cars.
Rodarte's statement, coupled with Ramirez's statement, both as relayed through Grose, tended to prove that Bernal was involved in the planning and theft of the car, which in turn leads to the reasonable conclusion that he also planned and participated in the robbery the next day. Thus, the order of the testimony and the evidence that such testimony established created the links necessary to render Rodarte's statement inferentially inculpatory as to Bernal.
Turning to a consideration of the specific content of Rodarte's statement, it implicates him in the criminal activity of the car theft and exculpates him as to the robbery. The statement does not expressly deny Bernal's involvement in the theft of the car or in the robbery. Further, Rodarte's admission to the theft of the car, his express denial of involvement in the robbery, and the other evidence at trial linking Rodarte to Bernal and both men to the theft of the car, the robbery, and to both crime scenes, created for the jury the reasonable inference that Bernal participated in the robbery. Importantly, Rodarte's adamant denial of participation in the robbery created the reasonable inference that Bernal may have been the principal in the robbery.
We thus view Rodarte's statement, while facially inculpating himself as to the car theft, as attempting to shift the blame for the robbery to the only other individual implicated by the other evidence, namely Bernal. See, e.g., Williamson, 512 U.S. at 603 ("And when seen with other evidence, an accomplice's self-inculpatory statement can inculpate the defendant directly: `I was robbing the bank on Friday morning,' coupled with someone's testimony that the declarant and the defendant drove off together Friday morning, is evidence that the defendant also participated in the robbery.").
Additionally, the fact that the prosecution offered the statement at Bernal's trial further supports our conclusion that the statement was inferentially inculpatory as to Bernal for purposes of an 804(b)(3) analysis. See, e.g., United States v. McCleskey, 228 F.3d 640, 644 (6th Cir. 2000) (noting that when the government seeks to introduce a statement under 804(b)(3), it tends to inculpate the defendant by "spreading or shifting onto him some, much, or all of the blame"). Finally, in his closing argument, the prosecution made explicit the inculpatory connection between Rodarte's statement regarding the car and Bernal's alleged guilt: "Once again, the last piece of evidence showing the guilt is the association. And it's the association that night when getting the car, and the next day in the bank. That's the association that we care about."
3. CRE 804(b)(3)'s Three-Pronged Test Pursuant to Newton
Having determined that Rodarte's statement is inculpatory as to Bernal, Newton compels the following analysis and conclusion. First, Rodarte was unavailable, as required. Second, the statement tended to subject Rodarte to criminal liability. Finally, because the statement is inferentially inculpatory as to Bernal, the People must show by a preponderance of evidence that the "corroborating circumstances" surrounding the making of the statement, not including other independent evidence, satisfy the Confrontation Clause's requirement of trustworthiness and reliability. Although Rodarte's statement satisfies the first two prongs of 804(b)(3), we find that the third 804(b)(3) prong of "corroborating circumstances," as interpreted by Newton, was not satisfied.
The record reveals the following facts regarding the circumstances surrounding the making of the statement: Detective Grose of the Brighton Police Department interviewed Rodarte the day of his arrest, January 30, 1997, while he was in police custody at the Brighton police station. Over the course of several hours on that day, which was approximately six weeks after the robbery, Grose conducted several interviews with Rodarte. Between each interview, Rodarte was placed in a holding cell at the police station. Further, Grose testified that Rodarte was worried, particularly about what kind and how much evidence the police had against him, during the interviews. Under Newton, the "where," "when," "to whom," and "what prompted" factors all indicate that the statement was untrustworthy. Newton, 966 P.2d at 575-76; see also Lilly, 527 U.S at 131;Stevens, 29 P.3d at 313.
Similarly, the factors articulated by the Tenth Circuit and cited with approval by Stevens lead to the conclusion that Rodarte's statement was not sufficiently trustworthy to satisfy 804(b)(3)'s "corroborating circumstances" requirement, which incorporates the requirements of the Confrontation Clause. A review of the interview transcripts, which amount to one continuous statement, reveals that the content of Rodarte's statement was contradictory in many places. In speaking about the car theft, Rodarte told Grose that he stole the car in order to sell it to four other men, whom he did not know. He further said that he did not know what the men were planning to do with the car. Later, however, he stated that he knew the men were going to do something illegal, perhaps even commit a robbery. Additionally, Rodarte's statement is peppered with statements such as "I don't remember" and "I am not sure." Thus, the "nature and character" of the statement was contradictory, elusive, and inconsistent, none of which supports a finding that the statement is trustworthy.
Further, the "declarant's probable motivations for making the statement," as well as the "circumstances under which the statement was made," also lead us to conclude that the statement is untrustworthy. Although he did provide a detailed account of the car theft as well as the four men who allegedly asked him to steal the car, the entirety of the statement makes it clear that Rodarte was meeting with Grose in an effort to protect himself from going to jail. At one point he tells Grose: "I'm trying to help myself out dude. I swear to God. But I don't want to go down nowhere dude. I don't want to go down on nothing."
Even Grose, a detective and witness for the prosecution, recognized the untrustworthiness of Rodarte's statement. At a motions hearing that addressed, among other issues, the admissibility of Rodarte's statement to Grose, Grose responded to the court's question of why Rodarte was upset during the interviews with the following explanation: "Because he was caught in several lies, and he was being confused as to time, where he was at. And he was getting frustrated because I was going back over his statements and he was changing his statements, and he was confused."
The motivation to mix falsehood with truth thus permeated Rodarte's statement and as a result we cannot conclude that his confession regarding the car theft, while denying participation in the robbery, contained the constitutionally required guarantees of trustworthiness. In contrast, we conclude that Rodarte's statement both attempted to shift blame for the robbery as well as sought to place himself in a light more favorable than Bernal by denying the greater of the two offenses, the robbery, while creating the inference that Bernal participated in that greater offense.
Thus, the record compels us to conclude that the statement is inherently untrustworthy for purposes of the "corroborating circumstances" prong of 804(b)(3), which equates to a failure to satisfy the Confrontation Clause. Put another way, the presumption of untrustworthiness was not rebutted because it is not at all "clear from the surrounding circumstances that the test of cross-examination would be of marginal utility." Lilly, 527 U.S. at 136. In contrast, the nature of Rodarte's statement, coupled with the circumstances surrounding the making of the statement, indicate that cross-examination of Rodarte would have been invaluable in undermining the credibility of Rodarte and of his statement. The statement was thus erroneously admitted at Bernal's trial.
4. Constitutional Harmless Error
Our conclusion that Rodarte's statement is untrustworthy and was accordingly erroneously admitted against Bernal does not end the inquiry, however. A violation of the Confrontation Clause is subject to a constitutional harmless error analysis. Blecha, 962 P.2d at 941-42. To be classified as constitutional harmless error, a court must be confident beyond a reasonable doubt that the error did not contribute to the guilty verdict. The constitutional harmless error test "is not whether, in a trial, that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id. at 942.
A constitutional harmless error analysis differs from a general harmless error analysis. Under a harmless error standard, reversal is required only if the error affects the substantial rights of the defendant. See People v. Garcia, 28 P.3d 340 (Colo. 2001). Under a constitutional harmless error standard, reversal is required unless a court is confident beyond a reasonable doubt that the error did not contribute to the guilty verdict. Blecha, 962 P.2d at 941-42.
Because we remand on the issue of the admissibility of the impermissibly suggestive photo line-up, there are two possible resolutions to the erroneous admission of Rodarte's statement. If, on remand, the trial court finds that the out-of-court identification was not admissible and accordingly vacates Bernal's conviction and orders a new trial, then we direct the trial court to exclude Rodarte's statement at the new trial.
However, if the trial court concludes that the out-of-court identification was admissible, then it would be required to complete a constitutional harmless error review. The court of appeals determined that the admission of Rodarte's statement was harmless error, and in the interest of judicial economy, we will also undertake such review at this time. The evidence presented, not considering Rodarte's statement, leads us to conclude beyond a reasonable doubt that the guilty verdict in this case was surely unattributable to the error. Specifically, the identification of Bernal by employees of the credit union (assuming that the eye-witnesses' identifications are admissible), Ramirez's statement implicating both Rodarte and Bernal in the theft of the car, and the testimony of an eyewitness in the parking lot of the credit union when the robbers were fleeing the scene, all lead us to believe that the admission of Rodarte's statement was constitutional harmless error. As stated in Wright: "[T]he presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless, rather than that any basis exists for presuming the declarant to be trustworthy." Wright, 497 U.S. at 823.
In addition, the court gave a limiting instruction to the jury regarding the purposes for which they could consider Rodarte's statement. That instruction was given contemporaneously with Grose's testimony as well as at the conclusion of the trial, and stated that the statement could not be used to determine Bernal's guilt. Such an instruction, when given with an inferentially inculpatory statement, diminishes the possibility of reversible constitutional error. See, e.g.,Marsh, 481 U.S. at 208; Charles, 704 N.E.2d at 1142. Thus, we agree with the court of appeals that the other evidence at trial, coupled with the limiting instruction, renders the error of admitting Rodarte's statement constitutionally harmless.
IV. Conclusion
On the issue of the photo array and out-of-court identification, we hold that the photo array was impermissibly suggestive. On this issue we reverse the judgment of the court of appeals and remand for further factual findings by the trial court on the reliability of, and thus the admissibility of, the out-of-court identification.
On the issue of the admissibility of Rodarte's statement against interest under CRE 804(b)(3), we find that Rodarte's statement was inferentially inculpatory as to Bernal. Thus, under Newton, the Confrontation Clause analysis becomes a part of the inquiry under 804(b)(3)'s third prong. We hold that the statement was improperly admitted under 804(b)(3) because the trial court failed to undertake a trustworthiness and reliability inquiry. We thus affirm the judgment of the court of appeals on this issue. If the trial court finds that the out-of-court identification is inadmissible and thus orders a new trial, we direct the trial court to exclude Rodarte's statement at the new trial. If the trial court concludes that the out-of-court identification is admissible and thus does not order a new trial, the admission of Rodarte's statement in the first trial was constitutional harmless error, and the judgment of conviction is affirmed.
JUSTICE COATS dissents. JUSTICE KOURLIS and JUSTICE RICE concur in the result and join part II of the Majority Opinion and part III of the Dissent.