Opinion
No. 00SC481
July 2, 2001 Petition for writ of Certiorari DENIED October 1, 2001.
Certiorari to the Colorado Court of Appeals Court of Appeals No. 98CA1102.
JUDGMENT REVERSED
No. 00SC481 Navarro v. People : Criminal Law — Conspiracy — Co-Conspirator Hearsay — Wharton's Rule.
In this sale of cocaine case, the supreme court holds that it was error for the trial court to admit hearsay statements as evidence under the co-conspirator hearsay exception where there was no evidence that the defendant conspired with the supplier to sell cocaine to a third party. The supreme court also holds that this error was not harmless because the court cannot say with fair assurance that the hearsay statements did not substantially influence the jury's verdict. The supreme court therefore vacates the defendant's conviction and sentence for sale of cocaine.
David S. Kaplan, Colorado State Public Defender, Lisa Dixon, Deputy State Public Defender, Denver, Colorado, Attorneys for the Petitioner.
Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Appellate Division, Criminal Enforcement Section, Denver, Colorado, Attorneys for the Respondent.
EN BANC
Upon consideration of the Supplemental Briefs, which were ordered when the Petition for Rehearing was granted and this court's prior opinion of July 2, 2001 was withdrawn, and now being sufficiently advised in the premises.
IT IS ORDERED that the Petition for Writ of Certiorari is DENIED as having been previously improvidently granted.
BY THE COURT, EN BANC, OCTOBER 1, 2001.
JUSTICE COATS dissents, and JUSTICE RICE joins in the dissent.
The two crimes at issue in this appeal are sale of cocaine and conspiracy to sell cocaine. Proof of the sale charge requires a showing that the defendant intended to sell and did sell cocaine to the supplier. Proof of the conspiracy charge requires a showing that the defendant, in selling the cocaine to the supplier, intended that the supplier would in turn resell the cocaine to the informant. The court of appeals determined that the evidence supporting the conspiracy charge was insufficient to sustain the jury's verdict. People v. Navarro, No. 98CA1102, slip op. at 5 (Jan. 20, 2000) (not selected for official publication). The issue before us is whether the hearsay statements of the recanting supplier about the defendant being his "source" and about having received cocaine from the defendant were admissible under the co-conspiracy hearsay exception as evidence at the defendant's trial to prove the sale charge. We conclude that they were not because there was no competent evidence of a conspiracy. Accordingly, because we cannot say with fair assurance that those hearsay statements did not substantially influence the jury's verdict, we hold that the error of admitting them into evidence was not harmless. We therefore reverse the court of appeals, vacate the defendant's conviction and sentence for sale of a controlled substance, and remand the case to the trial court for proceedings consistent with this opinion.
I. FACTS AND PROCEEDINGS BELOW
An inmate in the Boulder County Jail ("the informant") contacted police and asked to work off a pending felony charge by engaging in a controlled purchase of cocaine from his supplier, who lived in Boulder and who had told the informant that he had a "source" in Longmont. Police gave the informant two identified $100 bills. On May 21, 1997, the informant drove to the supplier's home in Boulder, picked him up, and drove him to Longmont. The police followed the two in a separate car.
The informant and supplier parked outside the County Building in Longmont, where the supplier believed the defendant was taking a class. The supplier did not see the defendant there and eventually called the defendant's wife from a pay phone to find out where he was. The supplier told the informant that the wife said that the defendant was in a class which would be ending soon and that the defendant would be leaving in a beige station wagon. As the defendant left the building, the supplier identified him to the informant as his source. The supplier walked towards the building to meet with the defendant. The supplier and the defendant then walked over to the defendant's beige station wagon, where they met for approximately five minutes.
The supplier and the informant then drove back to Boulder. During the drive, the supplier gave the informant 2.1 grams of cocaine, which the informant turned over to police.
Two days later, the police went to the defendant's residence to search his home and found one of the bills used in the controlled buy.
For his involvement in this controlled purchase, the defendant was charged with sale of a schedule II controlled substance and conspiracy to sell a schedule II controlled substance. § 18-18-405(1)(a). The defendant pleaded not guilty.
The defendant filed a motion requesting a pre-trial hearing challenging the admissibility of any co-conspirator hearsay statements offered by the prosecution. At this hearing the prosecution presented no evidence on this issue and the defense called one witness — the supplier.
The supplier testified that the defendant had nothing to do with the sale of cocaine to the informant. He testified that the defendant was a friend of his, whom he had known for ten or eleven years; that he had done yard and gardening work for him, but had never gotten high or transacted in drugs with him. He testified that he was lying when he told the informant that the defendant was his source and that they needed to drive to Longmont to get the cocaine from him. He said that he told this story to the informant because he needed transportation to Longmont so that he could repay part of a loan of money he owed the defendant. He testified that he did not buy cocaine from the defendant, but had possessed the cocaine himself the entire time, and that his transaction with the defendant in the parking lot involved only a $180 payment on his loan.
The trial court found that the preponderance of the evidence presented at the pre-trial hearing indicated that there was a conspiracy between the supplier and the defendant to sell cocaine to a third party: "I have to make a finding before they admit the statement that there's sufficient evidence of a conspiracy . . . . I think there's sufficient evidence of a conspiracy." The trial court allowed the prosecution, under the co-conspirator hearsay rule, to introduce into evidence at trial hearsay statements of the supplier that would otherwise constitute inadmissible hearsay. The trial court did not identify which statements would be admissible as co-conspirator hearsay, or whether those statements were made during the course of and in furtherance of the conspiracy.
At trial, the prosecution called as witnesses several of the police officers who followed the informant in the drive to Longmont and who observed the activities in the parking lot. One officer testified that, as the police followed the informant and supplier to Longmont, he listened in on the conversation between the informant and the supplier using an electronic device given to the informant. In this way, the police overheard the supplier describe his source as a short Mexican male who was taking a class in the County Building. When the defendant left the building, the officers heard, through the device, the supplier say "there he is." The officer testified that, when the supplier returned to the informant's car after meeting with the defendant, he heard the supplier say "let's go, we got it." All of the officers who testified stated that they did not see any drugs pass between the defendant and the supplier.
The prosecution also called the informant to the stand. He testified that he had driven the supplier to Longmont on at least two other occasions, and that on such occasions, the supplier would direct him to park the car on the street, tell him that he had to run around the corner, would walk away from the car and out of sight, and then would come back and give drugs to the informant. The informant said that, on the way to Longmont on the day in question, the supplier described his source as a short Hispanic man wearing an ankle bracelet. He testified that he could see the defendant and his supplier as they met in the car nearby, but that he did not observe either one of them giving anything to the other. He said that when the supplier returned to the car on that particular day, he said "let's go, we got it." He testified that the only reason he had to suspect that the cocaine the supplier later handed to him had come from the defendant was because the supplier told him so.
The supplier testified for the defense. As at the pre-trial hearing, he denied having bought cocaine from the defendant in the parking lot and asserted that the only meaningful event that occurred between him and the defendant in Longmont involved his giving the defendant some of the money that he owed him. He admitted that he told the informant that he had to go to Longmont to meet his source and that he described the defendant as his source. He claimed that he did this because, in a telephone conversation with the defendant earlier that day, the defendant told him that if the supplier did not pay him that day, then the defendant would sell a piano belonging to the supplier's girlfriend, which the defendant held as collateral for the loan. The supplier testified that he told the informant that they had to go Longmont to meet his source only because he had no other way to get to Longmont to repay the loan but did not testify to either of the co-conspirator statements. He denied that the informant had ever driven him to Longmont before. He said that he gave the defendant $180 towards repayment of the loan — $80 of which was his own money, and a $100 bill that he had received from the informant.
The People called the supplier's girlfriend to the stand as a rebuttal witness. She testified that she and the supplier had purchased cocaine from the defendant several times in the past. She said that she did not give the piano to the defendant as collateral securing a loan, but instead gave it to him in exchange for cocaine. On cross-examination, defense counsel showed receipts to the girlfriend that indicated a transfer of the piano to the defendant for $1100, plus several payments on this loan, including a $180 credit dated May 21. The girlfriend recognized her signature on the receipts. She denied, however, that the receipts indicated that she received a loan, secured by the piano, or had made any payments on this loan. She denied ever having given the defendant money. Neither side inquired as to her knowledge of the May 21 transaction in the Longmont parking lot.
The jury found the defendant guilty of sale of a controlled substance and guilty of conspiracy to sell a controlled substance. The defendant appealed.
In an unpublished opinion, the court of appeals reversed the defendant's conviction for conspiracy to sell a controlled substance, but affirmed his conviction for sale of a controlled substance. Navarro, No. 98CA1102, slip op. at 22. The court of appeals reversed the conspiracy conviction because it determined that there was no evidence in the record that the defendant conspired with the supplier to sell cocaine to a third party:
There is no evidence in the record, direct or circumstantial, that would establish that defendant knew that the supplier intended to resell the cocaine to another, or that defendant agreed to sell cocaine to the informant via the supplier, or even that defendant knew the supplier generally resold some or all of the cocaine he purchased.
Navarro, No. 98CA1102, slip op. at 5. The prosecution did not appeal this holding, and this issue is not before us to review.
Although the court of appeals found that there was no evidence of a conspiracy at trial, it nonetheless rejected the defendant's argument that it was error for the trial court to admit the hearsay statements of the supplier to the informant under the co-conspiracy hearsay exception at the pre-trial hearing. Id. at 6. According to the court of appeals, while there was insufficient evidence presented at trial to establish a conspiracy, "the evidence before the court at the [pre-trial] hearing was sufficient to support [the trial court's] conclusion" that a conspiracy existed. Id. at 6-7 (emphasis added). The court of appeals therefore "perceive[d] no error in the [trial] court's ruling admitting the co-conspirator statements, despite our ultimate holding on appeal that no evidence was presented at trial to support the jury's finding that a conspiracy existed." Id. at 7.
"Technically, the co-conspirator rule is a hearsay exemption that renders co-conspirator statements nonhearsay, however, the rule is commonly referred to as a hearsay exception." Blecha v. People, 962 P.2d 931, 937 n. 4 (Colo. 1998) (emphasis added).
The court of appeals rejected various other arguments made by the defendant not relevant to this appeal and affirmed the defendant's conviction for sale of cocaine. Id. at 22.
The defendant petitioned this court for certiorari. We granted certiorari on two issues. The first issue is whether it was error for the court of appeals to rely on the co-conspirator hearsay statements when determining the sufficiency of the evidence for the sale count, and, if so, whether such error is harmless. The second issue is whether the trial judge should have granted a mistrial after he informed the jury pool, before voir dire, that the defendant had a prior felony conviction for the same offense. Because we determine that it was error for the court of appeals to rely on the co-conspirator hearsay statements, and that this error was not harmless, we do not address this second issue.
The precise issues on which we granted certiorari are:
1) Whether the court of appeals erred by relying on co-conspirator statements as a basis to uphold the conviction for sale of a controlled substance, when there was "no evidence in the record" of a conspiracy.
2) Whether the trial judge should have granted a mistrial after he informed the jury pool, before voir dire, that Mr. Navarro had a prior felony conviction for the same offense.
II. ANALYSIS
A. Co-conspirator Hearsay
Hearsay statements are out-of-court declarations offered into evidence to prove the truth of the matter asserted. CRE 801(c). Hearsay statements are presumptively unreliable and thus are generally not admissible as evidence at trial. Blecha v. People, 962 P.2d 931, 937 (Colo. 1998); CRE 802. Out-of-court declarations of criminal conspirators, however, that are "made during the course of and in furtherance of the conspiracy," are deemed non-hearsay under our rules of evidence and may be admitted against all participants in a conspiracy. CRE 801(d)(2)(E); Blecha, 962 P.2d at 937.
The prosecution, as the proponent for admission of the co-conspirator hearsay, bears the burden of establishing by a preponderance of the evidence that (1) the defendant and the declarant were members of a conspiracy, and (2) that each of the declarant's statements was made during the course of and in furtherance of that conspiracy. People v. Montoya, 753 P.2d 729, 733-34 (Colo. 1988). The trial court should normally make this determination "during the presentation of the prosecution's case in chief and before the challenged statement is actually heard by the jury." Id. at 733. In making this determination, a trial court may consider the hearsay statements themselves, but the statements cannot be the sole basis for a finding of admissibility. Id. at 736. "We accord deference to the trial court's findings of fact and will not overturn them provided they are supported by competent evidence in the record." People v. McCullough, 6 P.3d 774, 782 (Colo. 2000).
In this case, the trial court ruled the statements admissible at that pre-trial hearing rather than at trial. The court of appeals held that "no evidence was presented at trial to support the jury's finding that a conspiracy existed" but nevertheless held that there was sufficient evidence at the pre-trial hearing to support the trial court's finding of a conspiracy. Navarro, No. 98CA1102, slip op. at 7. We disagree. Our reading of the record reveals that the supplier's testimony at the pre-trial hearing was virtually identical to his testimony at trial. Hence, we conclude that there was insufficient evidence to support the trial court's finding of a conspiracy based upon testimony presented at the pre-trial hearing.
A conspiracy is an agreement between two or more people to achieve the same criminal goal. See 2 Wayne R. LaFave Austin W. Scott, Jr.,Substantive Criminal Law § 6.4 at 60 (1986). "Conspiracy is a specific intent crime that requires the defendant to intend to agree, and to intend specifically to achieve, the result of the crime." Palmer v. People, 964 P.2d 524, 528 (Colo. 1998). Here, the prosecution charged that the defendant and the supplier conspired to sell cocaine to a third person, the government informant. Thus, the finding of a conspiracy must include the finding that the defendant specifically intended to, in concert with the supplier, sell cocaine to the informant. An exchange of cocaine from the defendant to the supplier would not constitute a conspiracy to sell cocaine because only one person — the defendant — would be seeking to sell cocaine (the supplier would be seeking to buy cocaine). "[A]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." People v. Bloom, 195 Colo. 246, 249, 577 P.2d 288, 290 (1978) (citation and quotation marks omitted).
We note that the People did not appeal the court of appeals' determination that there was no evidence of a conspiracy because there was no proof that the defendant knew that the supplier intended to resell the cocaine to a third party, and do not, before this court, contest the defendant's assertion that conspiracy for purposes of the co-conspirator hearsay exception requires proof in this case that the defendant conspired with the supplier to sell cocaine to the informant. We also note that the common-law rule that an agreement by two persons to commit a particular crime is not a conspiracy when the crime necessarily requires the participation of those two persons, sometimes called "Wharton's rule," has, since its adoption by this court in 1935, maintained its vitality in our jurisprudence even after the General Assembly adopted the Colorado Criminal Code in 1971. See People v. Wettengel, 98 Colo. 193, 195, 58 P.2d 279, 280 (1935) (holding that the crime of conspiracy does not apply to the case where "the conspiracy is charged to have included both the prospective giver and the prospective receiver"); see, e.g., Bloom, 195 Colo. at 249-50, 577 P.2d at 290-91 (noting that this court first adopted the Wharton rule in Wettengel, discussing the rule, and applying it, including one of its established exceptions).
There was no evidence at the pre-trial hearing to suggest that the defendant intended to sell cocaine to the informant. There was no evidence that the defendant knew that the supplier wished to enlist his help in selling cocaine to the informant or that the informant intended to help the supplier in this way. The only evidence presented at this pre-trial hearing was the testimony of the supplier himself. In his testimony at the pre-trial hearing, which we note above was virtually identical to his testimony at trial, the supplier denied that selling drugs was the purpose of his meeting with the defendant and claimed that he had never engaged in any drug transaction with the defendant. Hence, we conclude that there was no evidence presented at the pre-trial hearing to support the trial court's finding that the defendant conspired with the supplier to sell cocaine to the informant. Therefore, the supplier's co-conspirator hearsay statements made to the informant, "there he is" (before meeting the defendant) and "let's go, we got it" (made after meeting the defendant), and which were overheard by police, were erroneously admitted as evidence.
Given that it was error for the trial court to allow the supplier's co-conspirator hearsay into evidence, we turn to the question of whether that error was harmless.
B. Harmless Error
"A trial court's erroneous evidentiary ruling will not be reversed where the error is harmless." Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000). A trial court's evidentiary ruling will be deemed harmless "only if a reviewing court can say with fair assurance that, in light of the entire record at trial, the error did not substantially influence the verdict or impair the fairness of the trial." People v. Bowers, 801 P.2d 511, 518-19 (Colo. 1990).
The People argue that the co-conspirator hearsay statements were cumulative to other properly admitted evidence and thus did not contribute to the defendant's conviction. We disagree. The co-conspirator hearsay was central to the People's case. Absent the hearsay statements, there was scant evidence from which the jury could reasonably infer that the defendant sold drugs to the supplier as charged. None of the witnesses testified that they saw any drugs change hands in the defendant's car, and no one could hear what was said in the car, and the supplier denied that he bought drugs from the defendant in the car. Thus, the hearsay statements constituted one of the primary pieces of evidence from which the jury could infer that the defendant did not receive a payment on a loan in the car but instead sold cocaine to the supplier there. Given the importance of the co-conspirator statements to the strength of the People's case, we cannot say with fair assurance that they did not substantially influence the jury's verdict. Because the trial court's error was not harmless, we must vacate the defendant's conviction and sentence for sale of cocaine.
III. DISPOSITION
We therefore reverse the judgment of the court of appeals, vacate the defendant's conviction and sentence for the sale of cocaine and remand the case to the trial court for proceedings consistent with this opinion.