Bernal v. People

JUSTICE MARTINEZ delivered the Opinion of the Court.

[93] JUSTICE COATS, dissenting:

[94] Today the majority, in my view, erroneously analyzes two important questions of federal constitutional law: one involving almost two decades of lower court development without review by the United States Supreme Court and the other extending a veryPage 202recent and highly limited United States Supreme Court pronouncement. While I find the majority's due process analysis of pretrial identification procedures, adopted from certain lower federal courts, to be an improvement on our own prior treatment of the subject, especially because of its mechanical ease of application and its attempt to refine the relative burdens of proof, I nevertheless find it to be irreconcilable with the constitutional underpinnings of the doctrine as articulated by the Supreme Court. Similarly, I find the majority's Confrontation Clause analysis, excluding evidence as "inferentially inculpatory," not only to result from a misreading of the controlling Supreme Court discussion of declarations against interest but in fact to stand the Supreme Court's Confrontation Clause rationale on its head. Because I do not agree that a remand is required and because both of today's holdings involve important constitutional matters with consequences far beyond the outcome of this single case, I consider it important to explain my views in some detail. [95] The charges against the defendant and his codefendant, Johnny Raymond Rodarte, arose from the robbery of the American Pride Co-op Federal Credit Union in Brighton of nearly $12,000, at 2:45 in the afternoon of December 12, 1996. The charges against codefendant Rodarte were severed for trial. At the defendant's trial he was identified as one of the robbers by two bank employees, and a third employee testified to identifying Rodarte as the other robber during his trial. In addition to the testimony of bank employees who were present, the prosecution offered evidence of the police investigation, which located the car used by the robbers within minutes and later developed the codefendants as suspects from information provided by the car's registered owner. The prosecution also offered physical evidence linking codefendant Rodarte to the car,¹Rodarte's own admission that he had stolen the car, and testimonial evidence of the relationship between the defendant and Rodarte, in support of its theory that the defendant was the other person who committed the robbery with Rodarte. The defendant did not testify, or offer evidence of an alibi or alternate suspect, instead attempting to show discrepancies in the eyewitnesses' descriptions of the robbers.

[96] The uncontradicted testimony from the trial indicated that four employees were working at the bank on the afternoon of the robbery. At 2:45 p.m., assistant manager Mandie McBride noticed a light blue or gray car pull quickly up to the bank and saw two men get out. She then took her seat in the lobby and waited for them to enter. As the first man came in, McBride saw that he was wearing sunglasses and a baseball hat. He walked directly to McBride, pointed a handgun at her face, demanded that she take him to the vault, and pulled her up from her seat by her hair. The second robber, who was also wearing sunglasses and a baseball hat and was identified as codefendant Rodarte, confronted the two tellers, Menna Johnson and Misty Simons, and ordered them to lie on the floor. A customer who subsequently entered the bank was ordered to lie on the floor with them.

[97] Because access to the vault room required passage through the office of the manager, Kathy Wagner, McBride led the first robber into Wagner's office, where they found her sitting behind her desk. Wagner testified that she was able to see the robber's face the whole time he was approaching and as he stood to the side and behind McBride. The robber ordered both women into the vault room, all the while yelling at them not to look at him and striking them in the head with his pistol each of the several times they ignored his order. Once inside, Wagner handed over approximately $12,000. Heeding calls of "time, time," from the robber identified as Rodarte, the first robber joined him in the lobby before the two fled the bank to their waiting car.

[98] A witness in the area at the time of the robbery saw two men drive away from the bank in a foreign, silver/gray hatchback car. Within minutes, the police found an abandonedPage 203but still running car matching that description, and inside the car the police found two baseball hats and two pairs of sunglasses, matching the descriptions given by witnesses. When they contacted the car's registered owner, Daniel Tucker, he reported that the car had been stolen the night before but that a friend, Tano Torres, had a key and might have taken it. Tucker indicated that when he discovered the car was missing from outside his girlfriend's home, he paged Torres, who returned the call to the girlfriend's phone. Tucker's girlfriend testified that they received a call from Torres that day from what her caller ID identified as the telephone of Raymond Rodarte. Tucker knew Rodarte as Torres' cousin and someone he had met previously.

[99] Tucker told the police that along with Rodarte, Torres had introduced him to the defendant. Rodarte's common-law wife described all three as friends, but she described the defendant and Rodarte as particularly good friends — as being "joined at the hip." Rodarte's wife conceded at trial that she had told police detective Scott Grose in an earlier interview that she, Rodarte, Torres, the defendant, and another man had all been together shooting pool on the night before the robbery, when the car was reportedly stolen, and that after returning to the Rodarte home, the men left in a single car, only to return later in two cars, the latter of which was apparently driven by the defendant.

[100] Detective Grose testified that because Torres had a distinctive scar that had not been identified by the witnesses, he compiled separate photo arrays around Rodarte and the defendant. The Rodarte array was shown only to tellers Simons and Johnson and the customer. Only Johnson was able to identify Rodarte as the robber who remained in the lobby. The defendant's array was shown to Wagner and McBride, who both identified the defendant as the robber who forced them into the vault room. It was also shown to teller Simons, but she was unable to make any identification.

[101] Following the photo identifications, both men were arrested and charged. The defendant was convicted of second degree kidnapping, aggravated robbery, conspiracy to commit aggravated robbery, and second degree assault, and he was sentenced to forty-six years in prison. On direct appeal his convictions were affirmed, but his sentence was vacated and the case remanded with directions for the trial court to resentence within the presumptive range for second degree kidnapping and state its basic reasons and primary factual considerations in imposing its new sentence on all counts. [102] Prior to trial, the defendant moved to exclude both in- and out-of-court identifications on the grounds that the out-of-court photo identifications of him were so suggestive as to violate due process of law. The trial court heard and denied the motion. The sole witness at the hearing was Detective Grose, who testified about the way he created the photo arrays and the procedures he used to present them, the physical conditions inside the credit union, and the conduct of the robbery itself, as recounted by the statements of the victims. The preliminary hearing transcript of victim Wagner's earlier testimony and cross-examination was also admitted without objection.

[103] Although the defense had subpoenaed eyewitnesses Wagner and McBride to the motions hearing, only Wagner appeared. When the time set aside for the hearing ended, the court denied defense counsel's motion for a continuance until another day to examine both eyewitnesses and held that their testimony was unnecessary for it to determine that the identification procedures were not "so impermissibly suggestive" as to require suppression. In its ruling, the trial court noted that the array consisted of six young men with relatively identical features, approximately the same facial characteristics, and the same amount of hair, done in about the same way. It also found that the bank had good interior lighting and that the attention of the witnesses was necessarily focused on the defendant during the crucial times.

[104] A. CONSTITUTIONAL UNDERPINNINGS OF DUE PROCESS DOCTRINE

[105] Until 1967 the manner in which out-of-court identifications were conducted was heldPage 204to affect the weight but not the admissibility of identification testimony at trial. ,390 U.S. 377,382(1968); ,925 P.2d 767,770(Colo. 1996). In that year, however, the Supreme Court decided a trilogy of cases in which it articulated constitutional grounds for the exclusion of evidence of both out-of-court identifications and subsequent in-court identifications tainted by them. ,388 U.S. 218(1967); ,388 U.S. 263(1967); ,388 U.S. 293(1967). In two of the three cases, exclusion of evidence was premised on a criminal defendant's right to counsel guaranteed by theSixthAmendment to the United States Constitution.

[106] In and the Court sought to protect against suggestive pretrial identification procedures by permitting the presence of defense counsel, who could observe and bring to the attention of the jury anything that would affect the reliability of the witness's pretrial identification or taint subsequent in-court identifications. It therefore held that a post-indictment identification involving a lineup or showup conducted by law enforcement officials was a critical stage of the proceedings, and a failure to provide counsel at such a procedure would be sanctioned by the exclusion of the evidence of identification. ,388 U.S. at 236-37; ,406 U.S. 682,688-89(1972) (defendant'sSixthAmendment right attaches "at or after the time that adversary judicial proceedings have been initiated against him . . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment"); ,842 P.2d 621,622(Colo. 1992).²Because the Court considered it meaningless to merely exclude evidence of the out-of-court identification, once the witness had observed the defendant under these circumstances, it included within the exclusionary sanction for a violation of the right to counsel any subsequent in-court identification by the witness, unless the government could establish by "clear and convincing evidence that the in-court identification was based upon observations of the suspect other than the lineup identification." ,388 U.S. at 240; ,925 P.2d at 770. Much like theFourthAmendment exclusionary rule's treatment of derivative evidence, the exclusionary sanction for violation of theSixthAmendment therefore included an exception for subsequent in-court identifications for which there was an "independent source."

[107] The third case in the trilogy, , involved an identification procedure to which theSixthAmendment right to counsel was held not to apply. Nevertheless, the Court recognized that independent of any right-to-counsel claim, it would be a valid "ground of attack" that an out-of-court confrontation was "so unnecessarily suggestive and conducive to irreparable mistaken identification that [a defendant would be] denied due process of law."388 U.S. at 302. Because the showup in that case, however, was found not to have been "unnecessarily suggestive," the nature of a due process violation and the scope of any sanction for such a violation was not further defined.

[108] In part because the Supreme Court's early attempts used terms like "unnecessarily suggestive," ., and "impermissibly suggestive," ,390 U.S. at 384("[C]onvictions based on eyewitness identification . . . 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."), without actually finding a due process violation and implementing a sanction, the constitutional basis and standards for excluding evidence remained unclear for a number of years. By analogy to a violation of theSixthAmendment right to counsel, many jurisdictions, including this one, considered the witness'sPage 205independent ability to make an identification only as an "independent source" or "independent basis" for allowing an in-court identification, despite an "unduly," "impermissibly," "unnecessarily," or "unconstitutionally" suggestive out-of-court procedure. ,195 Colo. 259,261-62,577 P.2d 746,747(1978) (allowing in-court identification based on independent source following suppression of "unduly suggestive" out-of-court identification); ,642 P.2d 39,40(Colo.App. 1980) (suppressing out-of-court identification because of "unduly suggestive" and improper procedure but remanding for consideration of independent basis for possible in-court identification); ,651 P.2d 378,383-84(Colo. 1983) (allowing in-court identification after excluding "unnecessarily suggestive" photo showup); ,619 P.2d 53,56(Colo.App. 1980) (condoning in-court identifications after "impermissibly," "unduly," or "unconstitutionally" suggestive procedures); Nathan R. Sobel, §§ 4:3-4 (2001).

[109] At least by the time of ,432 U.S. 98(1977), the Supreme Court made clear that it rejected any thought of excluding identification evidence solely as a means of deterring disfavored police conduct, as it had done with theFourthAmendment exclusionary rule, concluding instead that "reliability is the linchpin in determining the admissibility of identification testimony."432 U.S. at 114. In contrast to a per seSixthAmendment violation, it held that a defendant's right to due process of law was not violated by the conduct of a pretrial identification procedure alone, no matter how suggestive or disfavored. . (despite suggestiveness of single photo array, due process not violated if identification possesses certain indicia of reliability); ,409 U.S. at 198("[A]dmission of evidence of a showup without more does not violate due process."); ,620 P.2d 232,237(Colo. 1980) ("One-on-one showups are not favored and tend to be suggestive, but are not per se violative of due process."). A due process violation would occur only by admitting very questionable identification evidence, whether of an out-of-court identification procedure that was so suggestive in the totality of the circumstances that it created a very substantial likelihood of misidentification or an in-court identification made unreliable by it. ,432 U.S. at 116.

[110] The Supreme Court also made abundantly clear that the likelihood of misidentification must always depend upon the witness's ability to reliably identify the defendant, despite the corrupting effect of a suggestive identification procedure, as measured by such considerations as the witness's opportunity to see the perpetrator, his degree of attention, the accuracy of his prior descriptions, the certainty of his identification, and the time and events occurring between the crime and the identification procedure. .; ,409 U.S. at 199-200. The practical effect of this holding was to apply the standard of admissibility for in-court identifications that followed unnecessarily suggestive out-of-court identifications to the initial out-of-court identification as well. ,432 U.S. at 119-24(Marshall, J., dissenting) (arguing that the term "unnecessarily suggestive" was intentionally used in as a basis for suppressing unjustifiable police conduct alone; that "impermissibly suggestive" was used in in addressing the admissibility of subsequent in-court identifications where the taint was "irreparable"; and that the majority in effect overruled both holdings by dropping the word "irreparable" from the formula and applying it to both in- and out-of-court identifications). The suggestiveness of the procedures themselves, or the lack of any justifiable need for such suggestiveness, could therefore never result, in and of itself, in a due process violation or the exclusion of evidence, ,432 U.S. at 113n. 13, and therefore could also never be "impermissible" in any constitutional sense.

[111] Since , lower courts have generally recognized that where a witness has the ability to make a reliable identification, notwithstanding any suggestive pretrial procedures, the challenged out-of-court, as well as a subsequent in-court, identification must bePage 206admitted. ,612 P.2d at 237-238. Failing to grasp the full import of and , however, many of these courts continued to cling to certain aspects of the constitutional violation theory that was squarely rejected by the Supreme Court in those cases. Most notably, by treating some unspecified type or degree of suggestiveness in the identification procedures themselves as "impermissible," and therefore unconstitutional in the absence of proof by the government of an "independent source" or "independent basis," these jurisdictions simply ignore 's interpretation of the prior Supreme Court holdings. ., ,24 F.3d 1259(10th Cir. 1994) (purporting to apply the " test," without acknowledging that or were ever decided); ,925 P.2d at 771-72,775-76(acknowledging and but accounting for "the witness's own observations at the time of the crime" only after determining that "a substantial likelihood of irreparable misidentification exists" for the suggestiveness of the procedure alone).

[112] The due process analysis of pretrial identification procedures and in-court identifications in their wake initially requires two distinct inquiries and then a "weighing" or balancing of the two. ,432 U.S. at 114. The court must weigh the suggestiveness of the pretrial procedures on one side, and the witness's independent ability to identify the defendant on the other. . While certain identification procedures are disfavored because they are inherently suggestive, ,432 U.S. at 116(single photo showups disfavored), no degree of suggestiveness considered apart from the witness's independent ability to make a reliable identification is in any sense "unconstitutional" or "impermissible." Not only do and not dictate otherwise; their explanation and ultimate holdings are an emphatic rejection of any such reading. As the analysis and conclusion of the majority, and those courts upon which it relies, make painfully clear, applying the concept of "impermissibility" to one half of the equation, as a kind of threshold burden for the defendant prior to any balancing, is not merely a matter of semantics but goes to the very heart of the dispute resolved by the Court in and .

[113] Shifting the burden of persuasion to the prosecution to establish the reliability of identification testimony can be justified only by characterizing police conduct as being, in some sense, impermissible. ., ,396 A.2d 233,237(Me. 1979) ("Having utilized an unfair means to establish defendant's guilt, the State must show that defendant was not harmed by its own transgression."). Unlike violations of theFourthorSixthAmendment, from which the "independent source" doctrine is clearly borrowed, however, the due process test applies to both the "derivative" in-court identification and the challenged pretrial identification itself; and unlike unreasonable seizures or post-indictment lineups outside the presence of defense counsel, suggestive pretrial identifications are not unconstitutional. As makes clear in its very formulation of the due process standard, in- and out-of-court identifications are not rehabilitated and rendered admissible by a showing of reliability; rather they become unconstitutional and are excluded or suppressed only upon a showing that there is a "very substantial likelihood of misidentification." ,432 U.S. at 116. Conceptually, the burden of persuasion therefore never shifts to the proponent of identification evidence challenged as impermissibly suggestive, even by a preponderance of the evidence, much less by a clear and convincing standard.³

[114] While the Supreme Court has not spoken directly about many of the procedural aspects of a due process challenge to eyewitnessPage 207testimony, it has held that the ultimate determination whether a pretrial identification procedure creates a very substantial likelihood of misidentification is a mixed question of fact and law. ,455 U.S. 591,597(1982). Like the voluntariness of a confession, ,474 U.S. 104(1985), this determination involves findings of historical fact, such as lighting, timing, positioning, and the witness's degree of attention, as well as the way in which the identification procedure was conducted, all of which are entitled to deference by a reviewing court; but the ultimate constitutional question concerning the likelihood of misidentification is primarily a legal matter to which no deference is owed. ,455 U.S. at 597n. 10.

[115] Unlike the voluntariness of a confession, ,378 U.S. 368(1964), however, the likelihood of misidentification resulting from a pretrial procedure or a subsequent in-court identification does not require a judicial determination outside the presence of the jury in every case. ,449 U.S. 341,349(1981). "It is the reliability of identification evidence that primarily determines its admissibility. And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform." . at 347 (citations omitted). For obvious reasons, a judicial determination outside the presence of the jury will usually be advisable, especially where matters of historical fact are in dispute or the suggestiveness of out-of-court procedures makes admissibility questionable, but it is not required, either by constitution or rule. .; ,692 P.2d 1069,1073(Colo. 1984) (identification suppression motions not among the pretrial suppression hearings required by Crim.P. 41(e) and (g)).

[116] Furthermore, both the Supreme Court and this court, as well as courts in other federal and state jurisdictions, have relied upon testimony at trial in assessing the constitutional admissibility of identification evidence in the wake of an allegedly suggestive pretrial procedure. ., ,432 U.S. at 115; ,409 U.S. at 200; ,679 P.2d 1077,1083-84(Colo. 1984); ,990 F.2d 672,674n. 2 (1st Cir. 1993); ,952 S.W.2d 286,290(Mo.App. 1997); ,233 N.W.2d 586,590n. 2 (S.D. 1975); ,975 S.W.2d 290(Tenn. 1998) (providing litany of federal and state cases relying on trial testimony to uphold denials of suppression motions). While reviewing courts may not be properly situated to resolve disputed questions of historical fact for themselves, and while they are obliged to show deference to findings of fact by trial courts, this court has often accepted as established, matters of fact not disputed in the record that are central to a lower court's rulings. ,13 P.3d 315(Colo. 2000). Particularly in this context, the distinction between law and fact is not always easily drawn, ,455 U.S. at 598, and the ultimate balance between the suggestiveness of the identification procedure and the witness's independent ability to make a reliable identification is treated as a matter of law.

While it might be possible in some cases to determine from the lack of suggestiveness in the challenged identification procedure alone that suggestiveness could not have created a substantial likelihood of misidentification,

see, e.g

.,

People v. Webster

,987 P.2d 836(Colo.App. 1998), that is not what happened in this case. Here, the trial court not only observed the photo array and heard unchallenged testimony about the neutral and formal manner in which the identification procedure was conducted; it also heard considerable testimony about the physical conditions and relevant circumstances surrounding the robbery and the witnesses' multiple opportunities and actual observations of the robbers. Although its ruling was cursory, in addition to assessing the composition of the array itself, the trial court expressly found that the lighting inside the bank was good and that the attention of the witnesses was focused on thePage 208defendant during his repeated assaults to make them stop looking at him. The court's finding that the out-of-court identification was not "impermissibly suggestive" was therefore the product of a balancing of elements from both sides of the scale.

[117] In addition to the trial court's specific findings of fact, the record of both the motions hearing and the trial contained uncontradicted testimony about the robbery that was supportive of the witnesses' independent ability to identify the defendant. The co-op was in a small trailer with abundant natural light and with multiple florescent lights, and the robbers were visible at least from the moment they noisily entered the front door, attempting to obscure their appearances only with baseball caps and sunglasses. The two women who identified the defendant observed him for several minutes, rather than merely in passing, and were actually close enough to be struck in the face and head by him several times, have clumps of hair pulled out, and smell alcohol on his breath. Each testified about her attentiveness and training to concentrate on particular facial features, ,432 U.S. at 115(witness's status as trained police officer is a factor in determining degree of attention), one testifying that she focused on the perpetrator's hair, skin, lips and jaw line, and the other noticing particularly his jaw and puffy cheeks. One described the six-foot, 155 pound defendant as tall with a medium build, black hair, and medium colored rather than dark skinned; while the other described him as taller than she — perhaps five feet, eight inches tall — with a medium build, black hair, and skin that was not white but not dark.⁴Each indicated that she was positive of the photo identification, and neither expressed any equivocation in identifying the defendant in court or during cross-examination.

[118] Even the delay of six weeks between the robbery and the out-of-court identification procedure did not significantly weigh against the witnesses' ability to independently identify the defendant. To the contrary, in light of the traumatic nature of the encounter, its duration in time, the witnesses' numerous opportunities to view the defendant up close, their level of confidence, and the absence of any wrong choices or failures by the witnesses during the intervening six weeks to identify the defendant, a delay of six weeks is not one necessarily causing adult memories to fade. ,409 U.S. at 203(despite seven-month gap, identification upheld because of other strong indicia of reliability); ,814 F.2d 1151(7th Cir. 1987) (two month gap does not by itself raise serious question about reliability); ,389 So.2d 1321,1324(La. 1980) (lapse of thirteen months found to be "a long time to remember a face," but was not per se unreliable); ,646 S.W.2d 68,71(Mo. 1983) (seventeen month interval between illegal drug transaction and time undercover agent identified defendant's photo held not unreliable in itself).

[119] Rather than a corporeal or photo showup of the defendant by himself, ., ,432 U.S. at 101(single photo showup); ,409 U.S. at 195(police station showup), or any situation pressuring the witness to make an identification, ,432 U.S. at 116, an array of six photos, including the defendant, was shown to each of the three women. The witnesses were separated in different rooms of the co-op before being shown the array and read a standard set of instructions by the administering detective. Each was specifically told that the array might or might not contain a suspect and that her choice, if she made one, could not be confirmed. Each was asked not to discuss the array or her choice with anyone. Manager Wagner picked the defendant's photo after studying the pictures for about two minutes, indicating that she was positive of her identification. Assistant manager McBride picked the defendant's photo afterPage 209about one minute, indicating that she was positive of her identification.

[120] The array itself contained photos of six men with approximately the same youthful appearance, medium complexions, dark hair, and generally similar facial characteristics, arranged in two rows of three photos each, with the defendant appearing in the middle of the top row. By far, the most prominent feature of each individual, and the feature that Detective Grose clearly sought to match in every photo, was the unusual hairstyle (described by the trial court as "done the same goofy-looking way"), which appeared as a tuft of hair rising from the top of the head with little or no hair on the sides.⁵Two photos, including that of the defendant, had differently shaded backgrounds,⁶but none appeared to be a mug shot or more likely to be a photo of a police suspect. Although the two witnesses who ultimately identified the defendant indicated for various reasons and with varying degrees of confidence a belief that the robber was Hispanic, they did not describe him as having physical features that particularly appeared to be Hispanic.⁷Furthermore, the varying ethnicities of several of the men in the photos were not so pronounced as to make the defendant's photo stand out from the others as one the police intended the witness to choose. . ,412 N.E.2d 669(Ill.App. 1980) (where murderer was described as Arab, photo array not suggestive despite defendant being only Arab in array consisting of others of Puerto Rican or Mexican descent resembling defendant). In any event, however, the array was apparently not so suggestive as to influence teller Simons, who was unable to identify anyone from it. ,172 F.3d 1196,1211n. 7 (10th Cir. 1999) (failure of some witnesses to identify defendant considered indication that array was not too suggestive). Even the identifying witnesses studied the photos for some time rather than immediately leaping at the defendant's photo.

[121] As often noted in the past, police stations are not theatrical casting offices and cannot be required to provide exact replicas of the defendant for a lineup. ,698 F.2d 365,367(8th Cir. 1983); ,859 P.2d 311,319(Colo.App. 1993); ,668 P.2d 21,23(Colo.App. 1983). On the contrary, to the extent that the object of a photo lineup is to determine the identity of the perpetrator rather than to deceive the witness, exact replicas of the suspect would not even be desirable. If uniformity were too rigidly required in photographic lineups, they would become ineffective as an investigative tool.

[122] Moreover, to the extent that any suggestiveness in a pretrial identification procedure appears on the face of the array, it can be brought to the attention of the jury, whether or not counsel was present during the procedure, just as well as it can be brought to the attention of a reviewing court. As has been stated by both the Supreme Court and this court:

We are content to rely on the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight ofPage 210identification testimony that has some questionable feature.

[123] ,432 U.S. at 116; ,925 P.2d at 772. Not only do such concerns present less of a danger than suggestiveness that arises from the manner in which police present the array to a witness, which the jury cannot observe, but to the extent that the composition of an array presents a less difficult choice for the witness, it correspondingly loses probative force as a test or demonstration and detracts from the persuasiveness of a subsequent in-court identification.⁸

[124] Despite the care taken during the presentation of the photo array in this case, it must be considered suggestive to some degree for a number of reasons, not least because of the differently shaded background of the defendant's photo and the predisposition of the eyewitnesses to identify an individual they thought might be Hispanic. The constitutionally significant question, however, is whether that suggestiveness, considered with all other relevant circumstances, created a "very substantial likelihood of misidentification" at that time and later when the witnesses identified the defendant at trial. The factors, or questions of historical fact, from which this determination should be made and for which the trial court is primarily responsible, such as lighting, timing, positioning, the extent of the defendant's disguise, the number of times the witnesses looked at him, and the confidence expressed by the witnesses in their identifications, were not in dispute. The ultimate balance is a mixed question of fact and law for this court. ,455 U.S. at 597.

[125] Even with regard to more subjective matters like the emotional state of the witnesses, their impressions, fears, memories, and degree of attention, the eyewitnesses were subject to examination and cross-examination at trial, without startling revelation. I see no need for a remand because I do not believe the ultimate constitutional determination in this case is dependent upon any as yet unresolved questions of historical fact. The majority's directions on remand suggest that it too is less concerned with findings that must be made by a trial court than with providing the defendant an additional opportunity to develop matters that he failed to pursue at trial. I strongly disagree with any suggestion that once a defendant demonstrates a degree of suggestiveness dubbed "impermissible," he acquires the absolute right to, in effect, depose the victims outside the presence of the jury. The extent and nature of the evidence necessary to determine the likelihood of misidentification will vary with the circumstances of each case, and in my opinion should remain a matter within the discretion of the trial court. Should the record of both the hearing and trial be inadequate to resolve the question, however, I agree that remand for further findings is the appropriate remedy.

[126] The record here demonstrates an intense, traumatic, and physically painful confrontation between trained bank employees and the robber, for several minutes, at extremely close quarters, in good lighting, with only a minimal attempt at disguise. It also shows a professionally conducted photographic lineup, designed to minimize suggestiveness in its presentation, resulting in well-considered, positive identifications by two of the three witnesses to whom it was shown. In my opinion, it cannot fairly be said that any suggestiveness inherent in the choice of subjects or the photos themselves created a "very substantial likelihood of misidentification" without which there can be no violation of the defendant's right to due process of law. [127] Following the photographic identifications, warrants were prepared and both the defendant and codefendant Rodarte were arrested. During custodial interrogation, Rodarte admitted that he and Tano Torres had used Torres' key to take Tucker's car the night before the robbery.⁹Rodarte specifically denied,Page 211however, that the defendant was involved in taking the car and denied that any of the three had anything to do with the subsequent robbery. Instead, he indicated that he had been solicited by four other Hispanic men to steal a car and that after he had done so, he sold the car to them.

[128] The People moved in limine for admission of Rodarte's out-of-court statement, expressly limited to that portion in which he implicated himself in the car theft. The offer was made for the limited purpose of demonstrating that Rodarte was personally involved in the robbery.¹⁰The trial court allowed the statement pursuant to the exception to the hearsay rule in CRE 804(b)(3) for statements against a declarant's penal interest and instructed the jury following opening statements, contemporaneously with admission, and again at the close of the evidence that the statement could be considered only for the purpose of establishing Rodarte's guilt.

[129] Like its federal counterpart, Rule 804(b)(3) of the Colorado Rules of Evidence allows an exception to the rule barring hearsay evidence for:

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.¹¹

[130] CRE 804(b)(3). There has been much discussion about the scope of a "statement" within the meaning of the rule, with the object of deciding whether that term connotes an extended declaration that is sufficiently inculpatory in the aggregate or merely those declarations or remarks within a confession that are "individually self-inculpatory." ,512 U.S. 594(1994) (limiting the federal rule more along the lines of the latter); ,966 P.2d 563(1998) (construing Colorado's rule to be broader and to include collaterally neutral statements). Unlike statements shifting blame to someone else, with which those discussions were concerned, the statement admitted in this case was on its face an "individually self-inculpatory" admission.

[131] Although those portions of statements against penal interest implicating other people may carry separate guarantees of trustworthiness in individual cases, their reliability, if any, does not derive from the reasons envisioned by the rule for statements against the declarant's own penal interest. In fact, both this court and the Supreme Court have on a number of occasions articulated reasons why the reliability of such statements is actually suspect, requiring corroboration or separate showings of trustworthiness. ,527 U.S. 116,130-31(1999) ("[W]e have over the years `spoken with one voice in declaring presumptively unreliable accomplices' confessions that incriminate defendants.") (quoting ,476 U.S. 530,541(1986)); ,29 P.3d 305,313(Colo. 2001) (holding that a codefendant's statements inculpating the defendant are "presumptively unreliable"). The dangers inherent in statements that seek to shift blame to another or cast the declarant's role in more favorable terms, however, are not present in all admissions of codefendants that might also prove disadvantageous to the defendant. The reasons that have been identified in these cases for presuming statements inculpating others to be unreliable are limited to statements that facially inculpate others or are intended by the declarant to do so. While a statement that minimizes the declarant's culpability by implicating a third party is not one that a reasonable person would refrain from making unless he believed it to be true, a statementPage 212admitting the declarant's own felonious conduct, while expressly excluding others, is precisely the kind of statement envisioned by the rule.

[132] Even a genuinely self-inculpatory statement by someone other than the defendant that facially inculpates only the declarant may be relevant in a trial of the defendant. It has long been recognized that proof that a defendant was an accomplice to a crime not only allows but in fact requires proof that someone else acted as the principal. ,182 Colo. 374,382,513 P.2d 446,450-51(1973); ,180 Colo. 280,283-84,505 P.2d 7,9-10(1973). In , the Supreme Court acknowledged that even under its narrow reading of the exception for statements against interest, a declarant's squarely self-inculpatory confession will likely be admissible under Rule 804(b)(3) against accomplices of his who are being tried under a coconspirator liability theory.512 U.S. at 603.¹²While it is to longer necessary in this jurisdiction to distinguish principals of various degrees and accomplices, a person clearly remains legally accountable for the behavior of another whom he intentionally aids or abets in committing an offense. §18-1-603, 6 C.R.S. (2001) (Complicity).

[133] Evidence that another person committed a crime is therefore logically relevant to the extent that other evidence tends to show he did not act alone and that the defendant was probably a person who aided him or conspired with him. Apart from liability for the behavior of another, as by complicity, evidence that the maker of a statement against penal interest and another person committed a crime, in conjunction with evidence that the defendant was likely to have been with the maker of the statement at the time of the crime, is evidence that logically tends to prove the defendant was the other person committing the crime. ,444 P.2d 91(Cal. 1968) (conjunction of accomplice with defendant in earlier robberies, together with his admitted involvement in charged robbery, supports inference that defendant and not some other person was accomplice in the charged offense). Even a statement that admits only the declarant's commission of a preparatory act is somewhat probative of his involvement, and through him the defendant's participation, in the charged offense.

[134] Here, codefendant Rodarte admitted stealing the car used in the robbery in a statement expressly exculpating the defendant of any criminal involvement in either the car theft or the robbery. Along with other evidence, however, including physical evidence further linking Rodarte to the crime and testimonial evidence linking Rodarte and the defendant during the period in question, the admission made it more likely that the defendant was one of the two robbers, acting together, than would have been the case from evidence of the defendant's participation alone. Under these circumstances, I would hold that the trial court did not abuse its discretion in finding Rodarte's statement admissible as an exception to the hearsay rule.

[135] Neither do I believe the court's admission of the out-of-court statement violated the Confrontation Clause. Admittedly, the Confrontation Clause requires more of statements made by a declarant who is not present and subject to cross-examination than that they fall within an exception to the hearsay rule. It requires that they either fall within a "firmly rooted" exception or contain particularized guarantees of trustworthiness. In light of the construction that we have given CRE 804(b)(3), making it broader than the corresponding federal rule,Page 213it is clear that some statements admissible pursuant to this exception would not fall within a "firmly rooted" exception to the hearsay rule. ,34 P.3d 401,405-06(Colo. 2001); ,29 P.3d at 313. As noted by the Supreme Court, however, "the very fact that a statement is genuinely self-inculpatory . . . is itself one of the `particularized guarantees of trustworthiness' that makes a statement admissible under the Confrontation Clause." ,512 U.S. at 605. Without considering whether a hearsay exception can be subdivided into those portions that are firmly rooted and those that are not, ,985 F.2d 770,775-80(5th Cir. 1993), it is enough that the statement in this case is "genuinely self-inculpatory," without any suggestion of shifting blame to the defendant or seeking to place the declarant in a light more favorable than the defendant, and therefore it contains the constitutionally required guarantees of trustworthiness.

[136] Despite the failure of the narrow statement that was admitted in this case to even mention the defendant, the majority finds it to be "inferentially inculpatory" of the defendant and therefore presumptively unreliable. It is not entirely clear to me whether the majority intends that no statement of a codefendant offered by the prosecution at the defendant's trial can be considered genuinely self-inculpatory; that under the specific circumstances of this case, the codefendant's statement is not genuinely self-inculpatory; or that even genuinely self-inculpatory statements may not be offered against someone other than the declarant without a showing of more particularized guarantees of trustworthiness. Because the Supreme Court has held that the very fact that a statement is genuinely self-inculpatory is itself one of the particularized guarantees of trustworthiness that makes a statement admissible under the Confrontation Clause, I disagree that any more particularized showing is required for genuinely self-inculpatory statements. Because it seems clear to me that a statement becomes suspect by shifting blame only if that could have been the intent of the declarant, I disagree that a statement can lose its genuinely self-inculpatory character merely by being offered by the prosecution at trial. And with regard to the genuinely self-inculpatory nature of the statement in this case, I cannot understand how a statement expressly exculpating the defendant of any involvement in either the theft of the getaway car or the robbery, and implicitly laying blame on four other Hispanic men to whom the stolen car was allegedly sold, can conceivably be characterized as attempting to shift the blame for the robbery to the defendant. maj. op. at 35-36. [137] Because I do not consider it necessary to remand for further findings of historical fact and because I would find that admission of the codefendant's self-inculpatory statement was not an abuse of discretion or violative of the defendant's right to confrontation, I would affirm. I therefore respectfully dissent.

[138] JUSTICE KOURLIS and JUSTICE RICE join in Part III of the dissent.