Stevens v. People

CHIEF JUSTICE MULLARKEY delivered the Opinion of the Court.

[49] JUSTICE BENDER concurring in part and dissenting in part.

[50] I agree with the analysis of the majority in Part II, section A, of the opinion holding that a statement against penal interest is not a firmly rooted exception to the hearsay rule. However, I respectfully dissent from the majority's Part II, section B which holds that the accomplice's statement in this case contains sufficient guarantees of trustworthiness to rebut the presumption that such statements are inherently unreliable. In my view, the accomplice's statement possesses simultaneous indicators of both unreliability and reliability and thereby fails to rebut the heavy presumption of reliability. As such, the trial court's admission of the accomplice statement violated the Confrontation Clause and, as applied to this case, constitutes constitutional error that is not harmless beyond a reasonable doubt.

[51] This accomplice statement was produced by the government while the declarant was in custody. The circumstances surrounding the taking of the accomplice's statement and the statement itself indicate that cross-examination of the accomplice would at the very least have cast some doubt as to the accomplice's reliability and provided the jury with the accused's perspective when it assessed what weight to give this statement. The statement here suffers from the identical constitutional vices that the United States Supreme Court unanimously condemned in ,527 U.S. 116(1999). In the words of the plurality, accomplice statements implicate the core concerns of the old affidavit practice and thus lack inherent reliability:

[T]he historical underpinnings of the Confrontation Clause and the sweep of our prior confrontation cases offer one cogent reminder: It is highly unlikely that the presumptive unreliability that attaches to accomplices' confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions that implicate the core concerns of the old

ex parte

affidavit practice — that is, when the government is involved in the statements' production, and when thePage 319statements describe past events and have not been subjected to adversarial testing.

[52] ,527 U.S. at 137; see also John G. Douglass, , 67 Geo. Wash. L. Rev. 191, 228 (1999) ("the `core' historical purpose of the Confrontation Clause: preventing the inquisitorial practice of trial by affidavit or by examination"). [53] Although I agree with a good deal of the majority's statement of the facts, critical facts necessary to determine whether the accomplice's statement is inherently reliable are omitted from its discussion. Thus, I review these facts to place my dissent in perspective.

[54] The victim was killed in February of 1993 as a result of two gunshot wounds. His body was found in the front yard of the defendant ("Crazy Dave"). Several days after the killing, the police questioned the accomplice, John Swiger (whose nickname was "Dreamer") along with his girlfriend, Bonnie Clontz. Questioned separately, both Swiger and Clontz denied involvement in the killing and both said that at the approximate time of the shooting Bonnie had gone on an errand to the liquor store. At the time, both Clontz and Swiger lived together with their child and other children from Clontz's previous relationships. Swiger later told authorities that he and Clontz told "a fictitious story to police during this interview." Swiger Statement 24, lines 28-29.

[55] Almost two years later, the Aurora detective who questioned Swiger immediately after the shooting, along with another Aurora detective, traveled to Carter County, Tennessee to interview Swiger who was in custody on unrelated attempted murder and robbery charges stemming from an incident alleged to have occurred ten or twelve days before the interview.¹²The detectives interrogated Swiger for at least two-and-a-half hours, the entirety of which was recorded on an audiotape.¹³The only persons present during this questioning were the two Aurora detectives, a Tennessee sheriff (Potter), and Swiger.¹⁴The audiotape was played to the jury and a 73 page transcript of the tape was published. In addition, Swiger gave a short statement written immediately after the taped interview which the prosecution also published to the jury. During deliberations, the jury requested a tape recorder, presumably to use in listening to the tape recording of Swiger's interview. These statements of Swiger's formed the basis of the prosecution's case of murder against the defendant.

[56] Before actually conducting their interview, the Aurora detectives talked to Clontz and to two other persons, Louis Holm and James Moody. Both Holm and Moody stated that Swiger admitted the Colorado killing. In addition, Holm told the officers that Clontz also had bragged about killing someone in Colorado and that Swiger said he killed several people in Charlotte. Clontz, herself,Page 320told these detectives that Swiger admitted to her that he killed the victim in this case. The record is unclear as to what details of the murder Clontz gave, but the detectives obtained a tape-recorded statement from her. It is clear, however, that investigators told Swiger, at least four times, that they had spoken to Clontz about Swiger's involvement in the murder.¹⁵

[57] Near the end of the two-and-a-half hour audiotape, on page 61 of the 73 page transcription, Swiger emotionally admitted killing the victim at the request and direction of the defendant as is fully set forth in the majority opinion. Swiger told investigators that the defendant asked him to commit the murder for $5,000 down and $5,000 after it happened;¹⁶that the defendant gave him the loaded murder weapon;¹⁷and that the defendant provided him with $300 after the murder when Swiger, Clontz, and a juvenile eyewitness to the shooting, Tina Parks, had traveled together to Tennessee, a few days after the murder.¹⁸Swiger said the defendant planned the murder to prevent the victim from testifying against him since the homicide victim was also the kidnapping and robbery victim in a pending criminal prosecution against the defendant.¹⁹

[58] For the greatest part of the interview, Swiger claimed that while he helped the defendant to dispose of the gun used in the murder several days after the killing, he, Swiger, had nothing to do with the murder. In this part of the interview, before his admission of his own involvement, Swiger told the police eleven times²⁰that he had nothing to do with the murder — e.g., "I've never killed anybody, but I'm jus' sure I would remember somethin' like that." Swiger statement 48, lines 7-8. During this part of the questioning Swiger stated that the defendant told him that "Mike" did the killing, . at 30, lines 4-5. He then described "Mike's" physical characteristics, family life, and residence: "Black guy, great big big guy. Big belly. He lives on an old farm, run, run down shack had a Harley parked out front. Lived with his wife, his two kids, his momma in the house, all of `em smoked dope. Got a hardwood floor." ., lines 15-19. Swiger said the defendant told him that "Mike" was the shooter. . at 29, line 12; p. 30, lines 9, 11.

[59] Swiger also told investigators three times,²¹both before and after his confession of his involvement as the shooter, that Clontz went to the liquor store at the time that the victim was shot. He repeated this assertion in his written statement saying: "I sent Bonnie, after some liquor and smokes." People's Exhibit No. 1. Investigators later determined that these statements were false because the victim was shot on Sunday, February 28, 1993, at approximately 11:00 p.m., when liquor stores in Colorado were closed.

[60] With respect to how much he drank on the day of the homicide, Swiger told the Detectives that he was "quite sure" he had "more than two" (fifths) of whiskey. . at 50, lines 2-3. Swiger said that the day before he had "done quite a bit" of acid "along with some cocaine." . at 50, lines 17-19. Nine times²²on the audiotape Swiger described himself as being drunk on the day of the murder. Additionally, Swiger indicated that in the two weeks prior to the murder he drank at least two bottles of whiskey each day. ., lines 2-3. During questioning the detectives also suggested to Swiger approximately nine times²³that he was drunk andPage 321did not really know what he was doing the night of the killing.

[61] Throughout the entire interview, Swiger told the investigators that he acted out of fear because the defendant would kill him and his family if he backed out. By his family, Swiger meant himself, his mother, who lived in the Denver area, and his girlfriend Clontz and their child. In the early parts of the interview, Swiger stated that he helped the defendant dispose of the gun used to shoot the victim because the defendant threatened his family. In his short written statement, Swiger wrote: "Dave [the defendant] and Cowboy [Cory Ivey's father] told me there was no backing out. That if I didn't. They would kill my family."²⁴People's Exhibit No. 1.

[62] Although the tape reveals no specific promises of leniency concerning charges against Swiger for his involvement in this murder, the two detectives twice promised him that they would keep him safe if he confessed,²⁵and eight times promised him that they would protect his family.²⁶One of the detectives midway through the interview suggested to Swiger that he committed the murder because he was drunk, that he was influenced by the defendant, and that his denials were false.²⁷These explanations and variations of this theme culminated in the following thirty-five line "question" by one of the detectives, shortly before Swiger confessed:

And I think what happened is that you drink a lot, I think maybe you drink `way too much and you drink hard liquor and I think you did your cocaine and you may have done `way too much acid and Crazy Dave starts talkin' with you and starts fillin' this stuff in your head, what kind of big man you can be . . . and I think it got to you and I think you got drinking too much and you probably `way down deep didn't want to do this because you're not that kind of guy but all of a sudden you're another guy, you're like two people, and this other guy came out, this tough Dreamer, this tough guy, not the family Dreamer, not the guy who loves Bonnie and those three children, but the other Dreamer, the guy that's `n that Harley with the gun and the national enforcer. And maybe this other guy comes out and goes and commits this murder . . . .

[63] Swiger Statement 58-59.

[64] During the course of Swiger's interview, investigators indicated to Swiger three times that his alleged co-conspirators might implicate him in the murder: "What's gonna happen, John, the minute your buddy Cory and Crazy Dave and Cowboy, or ex-buddies, I mean if they decide to roll on you, if they haven't already rolled, what's gonna happen then? What kind of a story are you gonna have for us then?" Swiger Statement 57, lines 6-9.²⁸They additionally stated to Swiger that it would not be fair for Swiger's co-conspirators to "get away with any of this what they made you do." . at 59, lines 12-13.

[65] During the trial, Clontz testified that she went to the liquor store that evening. She also said that the only reason that Swiger gave his confession to the Aurora detectives was that Sheriff Potter had threatened to place her children in a foster home. She also told the jury that she implicated Swiger because of this same threat. However, the prosecutionPage 322impeached this statement with her earlier statement to Potter in which she said that it was Swiger, not Sheriff Potter, who threatened to take her kids away from her. Potter testified that he made no such threats. Clontz also told the jury that she was an excellent marksman, better than Swiger. [66] A. Constitutional Standard

[67] Before turning to a discussion of whether Swiger's statements possess particularized guarantees of trustworthiness, I write to express my disagreement with five central themes that run through the majority's analysis.

[68] First, throughout the opinion the majority stresses that a genuinely self-inculpatory statement of an accomplice is inherently reliable: "[T]he most important determination as to its trustworthiness is whether the statement at issue is genuinely self-inculpatory or whether it shifts the blame from the confessor to the defendant." Maj. op. at 22; see also maj. op. at 32 ("[m]ost importantly, we find that the statement was genuinely self-inculpatory").²⁹According to the weight of United States Supreme Court precedent and that from many other jurisdictions, this conclusion is simply an inaccurate statement of law. The self-inculpatory portions of a genuinely self-inculpatory statement do not prove the truth or reliability of the non-self-inculpatory or collateral statements that inculpate other persons.³⁰ ,527 U.S. at 138-139; ,512 U.S. 594,599-600(1994); ,476 U.S. 530,545(1986); ,219 F.3d 690,695-96(7th Cir. 2000); ,191 F.3d 1214,1221(10th Cir. 1999); , No. SC94308, 2001 Fla. LEXIS 624, *26-27 (Fla. Apr. 5, 2001); ,618 N.W.2d 117,133-134(Neb. 2000).

[69] Whether an accomplice's statement is self-inculpatory restates the obvious that the statement was against his interest. In other words, to say that a statement is against one's penal interests is sufficient for a hearsay exception analysis but is not sufficient for the more stringent analysis required by the constitution. ,527 U.S. at 138-139; ,985 F.2d 770,782(5th Cir. 1993); ,610 A.2d 800,805(N.H. 1992). The fact that a statement shifts the blame or is genuinely self-inculpatory may be an indication that the statement is more reliable than unreliable; however, this factor is not necessarily more important than any other factor used to determine the inherent reliability of an accomplice statement.

[70] As a linchpin to its primary conclusion that a genuinely self-inculpatory confession is inherently reliable, the majority relies on the concurring opinion of Chief Justice Rehnquist in : "`confessions that inculpate both the declarant and the defendant'" satisfy the firmly rooted exception to a Confrontation Clause violation. Maj. op. at 22 (quoting ,527 U.S. at 146(Rehnquist, C.J., concurring)). , ,527 U.S. at 148(Rehnquist, C.J., concurring) (failing to reach thePage 323issue of particularized guarantees of trustworthiness).

[71] The majority, however, fails to acknowledge that a six person majority of the Court expressly rejected this view in by concluding that simply because the accomplice makes "a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts." ,512 U.S. at 599. In fact, the six person Court concluded that the proximity of self-inculpatory statements to other, non-self-inculpatory statements does not reveal the truth of the statement because "[o]ne of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature." . at 599-600.

[72] Even if I were to agree that the proximity of self-inculpatory statements to non-self-inculpatory statements indicated the inherent reliability of a statement as a whole, my review of Swiger's statements leads me to challenge the majority's conclusion that "Swiger's statements inculpating the defendant are closely intertwined with the self-inculpatory portions of his confession." Maj. op. at 24. Rather, the details of the defendant's involvement in the murder were given to officers primarily while Swiger denied his own involvement. Swiger Statement 13-16 (describing defendant's request that Swiger kill the victim and Swiger's refusal to do so), pp. 18-22 (describing the defendant's efforts to dispose of the murder weapon). Thus I conclude that the bulk of the non-self-inculpatory portions of Swiger's statement do not intertwine with the self-inculpatory parts.

[73] Secondly, I fault the majority for its nominal acknowledgment of the heavy presumption of unreliability that attaches to an accomplice's statement. The majority buries the cases discussing this presumption in footnote 6, maj. op. at 18, and mentions this presumption only as part of its discussion of whether a statement against penal interest is a firmly rooted hearsay exception in section II, Part A. The majority fails to discuss or to apply this presumption in section II, Part B of its opinion when determining whether Swiger's statement is inherently reliable.

[74] The basis for the presumption of unreliability that attaches to an accomplice's statement has been stated repeatedly by the United States Supreme Court and echoed by other courts: , because such statements "may well be the product of the codefendant's desire to shift or spread blame, curry favor, avenge himself, or divert attention to another." ,476 U.S. at 545.³¹

[75] An "accomplice often has a considerable interest in `confessing and betraying his cocriminals'" once the "jig is up" and he has become an antagonist of his codefendants. ,527 U.S. at 131(quoting 5 John Henry Wigmore, § 1477, at 358, n. 1 (1974)); ,476 U.S. at 545; ,748 A.2d 166,193(Pa. 2000). Thus, because a codefendant has a strong motivation to implicate the defendant, either to benefit or exonerate himself, the use of accomplice statements untested by cross-examination constitutes exactly the kind of threat to a fair trial against which the Confrontation Clause was directed. ,476 U.S. at 541; ,391 U.S. at 136.

[76] Third, while the majority opinion acknowledges the prohibition against bootstrapping, that an accomplice's statement must "possess `indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial,'" maj. op. at 20 (quoting ,497 U.S. 805,822(1990)), the majority violates this prohibition when it concludes: "Examining the record, we find that SwigerPage 324provided many details concerning the murder and the defendant's participation that could be independently confirmed," maj. op. at 28. The use of corroborating evidence of an accomplice's statement to justify admissibility contravenes established precedent. ,497 U.S. at 822; Lilly,527 U.S. at 137-38. Further, it taints the majority's analysis, causing the majority to misperceive whether the accomplice's statement possesses particularized guarantees of trustworthiness as required by the Confrontation Clause.

[77] Fourth, the majority also fails to acknowledge the powerful, controlling precedent of the Supreme Court case . is generally cited with respect to its plurality-of-four decision (Justices Stevens, Breyer, Ginsburg, Souter), which concludes that the admission of the accomplice statement in that case violates the Confrontation Clause for failure of particularized guarantees of trustworthiness sufficient to overcome the presumption of unreliability. Two Justices, Scalia and Thomas, wrote separately to say that in their view all custodial statements made to law enforcement by an accomplice are by their very nature inherently unreliable and admission under any circumstances violates the Confrontation Clause. ,527 U.S. at 143(Scalia, J., concurring); . at 143-144 (Thomas, J., concurring). Three other Justices, Rehnquist, Kennedy, and O'Connor, agreed that the accomplice's custodial statement in inculpating the defendant lacked sufficient indicia of reliability to satisfy the Confrontation Clause. . at 148 (Rehnquist, C.J., concurring). Hence, nine Justices believed that Lilly'sSixthAmendment rights were violated, four Justices held that the accomplice's statement lacked the required particularized guarantees of trustworthiness necessary to pass constitutional scrutiny, two supported a blanket prohibition of government produced confessions, and three believed that a determination of particularized guarantees of trustworthiness should be left for the state court to decide.³²

[78] Considering the impact of the plurality decision and each concurrence, I conclude that the presumption of unreliability that attaches to an accomplice's statement obtained while in custody is rebuttable only in very limited circumstances. In other words, the presumption of unreliability is a "heavy" presumption. ,191 F.3d at 1222. In my view, the majority errs by not reaching a similar conclusion.

[79] Fifth, and finally, while appropriately relying on the Tenth Circuit case of , for factors that may indicate inherent reliability of an accomplice's confession, the majority fails to recognize the significant conclusion in which questions whether out-of-court statements that are strongly against a declarant's penal interest but which inculpate a third party possess sufficient inherent reliability to satisfy the constitutional mandate after . ,191 F.3d at 1223("[A]fter . . . , it is no longer clear whether considering the degree to which a statement is against penal interest is even permissible."). Indeed, in , the Tenth Circuit notes that none of their earlier cases support a finding of reliability of an accomplice statement that is self-inculpatory where there are "simultaneously strong indicators of unreliability." ,191 F.3d at 1223. [80] Because I find simultaneous factors of both unreliability and reliability in Swiger's statement, I turn to a discussion of the majority's application of the constitutional principles to Swiger's statement which I find questionable.

[81] The majority distinguishes this case from by saying that although "the accomplicePage 325[in ] confessed to being involved in a crime spree with his co-defendants, which included robberies and a murder, [he] denied any involvement in the murder, the most serious crime committed." Maj. op at 23, n. 7; maj. op. at 26. While it is accurate that Lilly's brother and co-defendant, Mark, stated that he "didn't have nothing to do with the shooting,"527 U.S. at 121, Mark did admit being present when the victim was shot, and by this admission he potentially subjected himself to murder charges based either on a felony murder or complicity theory. By emphasizing that Mark Lilly denied that he was the shooter while Swiger admitted to this role, the majority fails to acknowledge that Swiger, as did Mark Lilly, attempted to shift the blame for the murder by naming the defendant as the mastermind of the crime.³³ ,527 U.S. at 120-21. Implicating the defendant as the instigator and mastermind of the murder plan, as Swiger did, is a factor that weighs against the inherent reliability of the statement. ,618 N.W.2d at 133("A circumstance in which a declarant admits his or her presence and participation in a crime, but indicates that another was the `mastermind' or primary actor, is one of the more common fact patterns in which courts hold that a declarant's statements inculpating the defendant may not be admitted at trial.").

[82] The majority further distinguishes by stating that at the time Swiger made his statement he "was not being detained for his involvement in the victim's murder and did not have the same outside pressures that existed in to make a statement to the investigating officers." Maj. op. at 26. Although Swiger was not in custody for the Colorado murder, he was in custody for the serious crimes of attempted murder and armed robbery that had allegedly occurred ten to twelve days before this interview. That police officers from Colorado, who had talked to Clontz, were in Tennessee to interview Swiger because of his own statements about the killing suggests that Swiger may have known that he was a suspect at the time of his interview. Swiger Statement 71, lines 23-24 ("I'd already got word `way y'all were comin' here, that y'all had a tape."). In fact, investigators informed Swiger that he was a suspect in the murder. Swiger Statement 41, lines 18-21 ("[W]e look at you . . . [a]s a suspect in this crime."). These circumstances do not suggest that Colorado authorities failed to consider Swiger a serious suspect and had no evidence against Swiger as the majority suggests when it says: "[I]t would appear that Swiger successfully escaped detection for the crime by fleeing the State and taking with him the only known eyewitness to the crime." Maj. op. at 26.

[83] The majority concludes that, unlike in , "apart from informing Swiger that witnesses had come forward stating that they had heard Swiger bragging about his involvement in a murder, the police investigators did not tell Swiger that they had any other evidence linking him to the victim's murder." Maj. op. at 26.

[84] This statement fails to acknowledge that in addition to other witnesses, the interviewing officers told Swiger that they had interviewed his girlfriend, Bonnie Clontz, before talking to him. Officers expressly stated, "[W]e've already talked to Bonnie," Swiger Statement 54, lines 12-13, and "Bonnie's helpin' us," . at 53, lines 6-7. . at 52, lines 2-4. When Swiger denied telling Bonnie what happened the night of the murder, one of the officers confronted him: "So Bonnie's lying?" Swiger answered "I don't know `cause I don't know what Bonnie told you." . at 58, lines 1-2. Although Swiger may have been unaware of the exact content of Bonnie's statements, he understood that the police had spoken with her and that her statements contradicted his earlier denials of involvement.Page 326

[85] A factor weighing against inherent reliability occurs when, as in this case, law enforcement officers have already interrogated another witness and thus knew what they were looking for when questioning the accomplice. Similar circumstances to those that occurred here have been found insufficient to rebut the presumption of unreliability of an accomplice confession. ,476 U.S. at 544(concluding that accomplice confession was unreliable where "elicited only after [the declarant] was told that [the defendant] had already implicated him"); , 2001 Fla. LEXIS at *26 (concluding accomplice confession was unreliable where the accomplice was confronted with inculpatory evidence); ,523 S.E.2d 534,539(Va.App. 2000) (concluding that factors indicating reliability were that law enforcement lacked knowledge of the declarant's role in the crime confessed and that the accomplice lacked knowledge that he or she had already been implicated in the crime).

[86] Another way in which the majority distinguishes is by noting "the lack of any offers of leniency" in this case whereas in , officers told the defendant's brother "he would be facing life imprisonment" if he did not make a statement. Maj. op. at 27 n. 9. Although it is true that no express offers of leniency were given to Swiger, as in , police officers implied that failure to confess would result in negative consequences to Swiger. Investigators urged Swiger to confess three times, specifically because someone else might "roll" on him.³⁴

[87] Additionally, the majority states that "Swiger did not inquire as to any possible benefit he would receive for cooperating with the investigating officers and making his confession." Maj. op. at 27. This conclusion misstates the facts. Swiger inquired as to benefits he would receive in exchange for his statement when he asked for protection for himself and his family³⁵and when he requested leniency for his girlfriend Clontz.³⁶Officers responded to both these requests by offering Swiger and his family protection³⁷and implying an offer of leniency for Clontz.³⁸These factors weigh against the trustworthiness of his statement. ,219 F.3d at 695-696(concluding that statements by law enforcement that an accomplice could "help himself" by "cooperating," offers of protection, and inquiries by the defendant asking what could be done to help him even without an express offer of leniency, weigh against a finding of reliability); ,618 N.W.2d at 344.³⁹In particular, the implied offer of leniency to Clontz suggests unreliability because it gave Swiger a motive to lie about his girlfriend's possible involvement in the crime. Officers promised Swiger that "if Bonnie had nothing to do with this other than lie to me when I first talked to her (pause) then we're not gonna do anything to her." Swiger Statement 61, lines 7-8.

[88] The majority states that "the record does not support an assumption that Swiger's confession was hinged on this offer of protection." Maj. op. at 28 n. 10. I disagree. At the end of the interview, Swiger expressly states his belief that his confession earned his family police protection. When asked if he had been offered anything for his statement, Swiger responds, "jus' that, jus' ahh ifPage 327I told the truth, my family'd be protected." . at 72, lines 18-19.

[89] The majority also minimizes the role that the officers' leading questions played in obtaining Swiger's confession. The majority fails to acknowledge the extensive leading questions, or more accurately, statements that the officers made to Swiger. Maj. op. at 22. Before Swiger's admission that he shot the victim, officers offered Swiger their version of the course of events leading to the shooting at least nine times.⁴⁰A statement given in response to officials' leading questions, such as those stated by officers to Swiger, is a factor that weighs against a finding of inherent reliability. ,527 U.S. at 139; ,476 U.S. at 544; ,219 F.3d at 695; ,212 F.3d 1112,1119-20(8th Cir. 2000); ,618 N.W.2d at 131.

[90] In contrast to such leading statements produced while the declarant is in custody, the spontaneity of a statement is a factor that weighs in favor of a finding of particularized guarantees of trustworthiness. An outburst in response to a non-leading question presumably indicates that the declarant did not have time to fabricate a version of events, thereby reducing the constitutional need for cross-examination to test the reliability of the statement. ,610 A.2d 800,806(N.H. 1992) ("A declarant's spontaneous statements are likely to be reliable because his reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." (quotation marks omitted)); , 639 A.2d at 136 (concluding that a statement which was the product of deliberate and particularized police interrogation could not be a spontaneous explanation of events).

[91] The majority attempts to diminish the impact of the numerous leading questions by officers by noting that Swiger admitted to officers that he "had confessed his involvement in the victim's shooting to acquaintances in Tennessee." Maj. op. at 26. This statement misrepresents what Swiger said and why he said it. Swiger indicated to officers that he bragged about involvement in the murder to gain the respect of other bikers while simultaneously denying to those officers any actual involvement in the murder. Swiger Statement 25, lines 15-16 ("I told `em I did it, made me somebody. They respected me. They feared me."); p. 28, line 25 (denying involvement). Swiger did not indicate to officers that these boasts were true confessions, and thus these statements do not significantly minimize government influence in the making of Swiger's statement.

[92] In short, the government action played a significant role in producing Swiger's confession to shooting the victim: Swiger was in custody on serious felony charges in Tennessee; he knew that investigators had talked to his girlfriend about his involvement;⁴¹the officers promised safety for himself and his family;⁴²the officers promised leniency for any possible involvement his girlfriend might have had in the crime;⁴³the officers threatened that Swiger's co-conspirators might "roll" on him;⁴⁴officers intimated that Swiger could receive mental health assistance if he confessed;⁴⁵and Swiger was subjected to a host of suggestive questions by one of the interrogating officers.⁴⁶Page 328

[93] The majority further downplays Swiger's underestimation of his role in the killing by concluding that "[t]he only part of Swiger's confession that in any way minimized his culpability was his naked assertion that he could not withdraw from his agreement with the defendant to murder the victim because he believed that, if he did so, the defendant would harm his family." Maj. op. at 24. Again, I disagree.

[94] Swiger told police, before his confession, that he was not involved with the murder but only helped dispose of the gun. Swiger Statement 13-22. Additionally, Swiger repeatedly stated that he was under the influence of drugs and alcohol at the time of the shooting. He told them that he drank more than two-fifths of whiskey that day and that the day before that he had "done quite a bit" of acid "along with some cocaine." Swiger Statement 50, lines 17-19. He said that, in the weeks before the shooting, he drank at least two bottles of whiskey each day. ., lines 2-3. Investigators suggested to Swiger that his condition "may help him" minimize his culpability if he had "so much drugs and alcohol in [him] that [he was] not aware of what [his] physical actions are doing or maybe someone could talk [him] into doing something." Swiger Statement 48, lines 14-17.

[95] Thus, I conclude that Swiger attempted to minimize his involvement and put himself in the most favorable light to police by (1) telling them that he was drunk during the shooting, (2) repeatedly claiming, before confessing, that he only helped dispose of the gun, and (3) after confessing, claiming that he did so only because he was afraid that if he did not carry out the murder, the defendant and his cohorts would kill him and his family.

[96] Additionally the majority concludes, "Nothing in the record suggests that Swiger thought his claim of coercion would exonerate him," maj. op. at 24, in part because "Swiger was aware that confessing to killing the victim would lead to severe consequences," maj. op. at 25. Again, I disagree. While it is true that Swiger understood that confessing may result in life imprisonment, the record also contains evidence that Swiger hoped to mitigate this potential sentence.

[97] In my view, Swiger may have viewed his justification for committing the crimes he did, that is, because of threats of violence directed against him and his family, as mitigating his culpability. He told the detectives no less than seventeen times that he feared for his and his family's safety during the course of his statement.⁴⁷These claims may represent an unsophisticated attempt to establish the defense of duress — a statutory defense available to a person who engages in unlawful conduct because of the threatened use of force upon him or another person. §18-1-708, 6 C.R.S. (2000); ,41 Colo. App. 75,77,583 P.2d 942,944(1978). As a matter of Colorado law, this defense is not available to a person in Swiger's situation, that is, a person under investigation for a class one felony. §18-1-708(providing the defense of duress to offenses "other than a class one felony"). Nonetheless, I find it reasonable to conclude that Swiger's explanation of why he killed someone he hardly knew — that he did it to protect himself and his family — would put him in a favorable light with authorities. It placed "blame on his cohorts, [that] may inure to his advantage." ,527 U.S. at 139.⁴⁸

[98] The majority concludes that Swiger's statement is "genuinely self-inculpatory" in part because it was obtained after a Miranda advisement. Maj op. at 24. I note that warnings do not bear on the reliability of the accomplice's statement. ,476 U.S. at 544(concluding that a finding that a confession was "voluntary forFifthAmendment purposes . . . does notPage 329bear on the question of whether the confession was also free from any desire, motive or impulse [the accomplice] made have had either to mitigate the appearance of his own culpability by spreading the blame or to overstate [the defendant's] involvement"); , Lilly,527 U.S. at 138; ,618 N.W.2d at 134.

[99] Additionally, although a statement that describes a crime in a level of detail suggests reliability,⁴⁹a detailed description could simply be an elaborate lie, and thus should only be one of a number of factors considered as indicia of inherent reliability. ,843 P.2d 658,662(Colo. 1993). For instance, before Swiger confessed to the murder of the victim, he described in detail the appearance, residence, and family of the "real" shooter, Mike:

Officer: You don't know anything else about this Mike?

Swiger: No, sir, I . . . Mike in Oklahoma when I was down there.

Officer: White guy, black guy?

Swiger: Black guy, great big big guy. Big belly. He lives on an old farm, run, run down shack had a Harley parked out front. Lived with his wife, his two kids, his momma in the house, all of `em smoked dope. Got a hardwood floor.

[100] Swiger Statement 30, lines 12-18. Further, at least one state court has held that a high level of detail in a statement does not overcome the strong presumption of unreliability which attaches to a statement made in police custody where the declarant had a motive to curry favor with authorities. ,618 N.W.2d at 135.

[101] The majority concludes that Swiger's statement is inherently reliable because it "provides us with no reason to believe that there was any animosity between Swiger and the defendant." Maj. op. at 30. Again, I disagree. Swiger said repeatedly that he lived in fear that the defendant and his cohorts would kill him and/or his family if he failed to commit the murder or reported it to authorities. If true, to me this suggests a great deal of animosity between Swiger and the defendant. In addition, Swiger showed signs of antagonism towards the defendant when he agreed with police officers that the defendant should not get away with this murder. Swiger Statement 59, line 13-14. Antagonism between an accomplice and a defendant indicates the "jig is up" and that the accomplice has an interest in betraying a co-conspirator. ,527 U.S. at 131.

[102] Later in its opinion, the majority states that "Swiger knew that his statement could very well put himself and his family in danger, providing [him] with a strong incentive to avoid inculpating the defendant. That Swiger acted in the face of such knowledge supports a finding of trustworthiness." Maj. op. at 31. I suggest that these conclusions are contradictory: that Swiger made incriminatory statements despite fear of harm to his family appears inconsistent with the conclusion that there existed no animosity between Swiger and the defendant.

[103] Regarding Swiger's repeated lies about Clontz's trip to the liquor store,⁵⁰the majority reasons that these fabrications "raise no serious concerns regarding the trustworthiness of the part of Swiger's statement that inculpates the defendant." Maj. op. at 31. However, the fact that an accomplice lies about the role of a potential accomplice or co-conspirator raises serious concerns about the credibility of his statement inculpating another in the crime. ,721 N.E.2d 52,63(Ohio 2000) (finding statement contained no elements of trustworthiness where defendant admitted that he had lied).⁵¹

[104] The majority asserts that Swiger's statement is inherently reliable in part because "although the record shows that Swiger was very emotional during his confession, there is no evidence that he was mentally or physicallyPage 330unstable." Maj. op. at 31.While the degree of agitation of a codefendant may in some circumstances be indicative of the reliability of his statement,⁵²in my view the majority's conclusion is too sweeping. The fact that the declarant was agitated or crying at the time he made his statement might indicate either that his statement is credible or that it is untrustworthy. Without an opportunity to observe Swiger's demeanor when he made this statement from a video recording or at least hear the audio recording of it, I believe it is impossible for us as an appellate court, to conclude whether the declarant's agitation weighed in favor of or against the inherent reliability of his statement.

[105] Although the self-inculpatory nature of Swiger's statement, his detailed description of the crime and his understanding that his confession could result in a lifetime sentence of imprisonment present indicia of reliability, the statements possess equally, if not stronger, indicia of unreliability. Swiger was in custody for serious crimes at the time he made his statement; he implicated the defendant as the mastermind of the murder; he repeatedly lied about his and Clontz's involvement in the murder; his confession was made in response to leading questions by government authorities who had other evidence of Swiger's guilt and knew what they were looking for; he asked for and received offers of police protection; he asked for and obtained a no prosecution promise for Clontz; and he attempted to minimize his role and shift blame to the defendant by saying he was drunk and participated only because of fear for his own safety and that of his family.

[106] Six of the Supreme Court Justices have agreed it is highly unlikely an accomplice statement will contain particularized guarantees of trustworthiness sufficient to rebut the heavy presumption against its admissibility in a criminal trial against the defendant. My application of the factors indicating inherent reliability leads me to conclude that Swiger's confession is not one of the rare accomplice statements that rebuts the presumption of unreliability. However, even applying the majority's grudging view of the presumption of unreliability, in other words, not affording the presumption much weight, the simultaneous existence of indicia of unreliability and reliability in Swiger's statement dictate that this presumption is not overcome. ,191 F.3d at 1223(concluding that where there are simultaneous indicators of both reliability and unreliability, the presumption of unreliability is not rebutted). In my view, the factors indicating reliability are at least counterbalanced by stronger indicia of unreliability. Hence, the admission of this statement in the defendant's trial violated the Confrontation Clause. [107] Before considering whether the admission of Swiger's confession was harmless constitutional error, I pause to express my disagreement with the majority's implicit conclusion that cross-examination of Swiger would have been of marginal utility. Maj. op. at 11 ("The Confrontation Clause only permits the admission of hearsay evidence where the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility." (quotation marks omitted))

[108] As one of the leading treatises on evidence puts it: "For two centuries, common law judges and lawyers have regarded the opportunity of cross-examination as an essential safeguard of the accuracy and completeness of testimony." 1 John W. Strong, et al., 87-88 (5th ed. 1999). The Confrontation Clauses of both the Colorado and federal constitutions have been construed to guarantee the accused's right to cross-examination in criminal proceedings.⁵³ ,156 U.S. 237,242-43(1895); ,191 Colo. 521,524,554 P.2d 297,300(1976). The framers of the Constitution sought to prohibit the use by the GovernmentPage 331of affidavits by providing the accused the right to confront his accusers in order to test their truth-telling capacities. In the words of the United States Supreme Court, the primary purpose of the Confrontation Clause is to

prevent . . .

ex parte

affidavits, . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

[109] ,156 U.S. at 242-43.⁵⁴

[110] "There are few subjects, perhaps, upon which [the] Court and other courts have been more nearly unanimous than in the expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." ,476 U.S. at 540(quoting ,380 U.S. 400,405(1965)). Supreme Court opinions are replete with references to the historical importance of the Confrontation Clause. ., ,527 U.S. at 140-41(Breyer, J. concurring) ("The right of an accused to meet his accusers face-to-face is mentioned in, among other things, the , Shakespeare, and 16th and 17th century British statutes, cases and treatises."); ,487 U.S. 1012,1017-18(1988) ("The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it."); ,399 U.S. 149,157n. 10 (1970).⁵⁵

[111] The accused's right to confront and cross-examine adverse government witnesses "contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails." , 476 at 540. "[T]here is something deep in human nature that regards face-to-face confrontation between accused and accuser as `essential to a fair trial in a criminal prosecution.'" ,487 U.S. at 1017(quoting ,380 U.S. at 404). In addition, this right secures a functional right by promoting reliability in criminal trials. The right of confrontation advances the jury's pursuit of truth because it forces the witness to submit to cross-examination, the " ." ,399 U.S. at 158(emphasis added).⁵⁶

[112] When a witness testifies in person and is subject to adversarial testing, then the jury has the opportunity to assess the demeanor of the witness and to assess whether the witness's direct testimony withstood the rigors of cross-examination. "[C]ross-examination [is] designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from whichPage 332jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" ,475 U.S. 673,680(1986) (quoting ,415 U.S. 308,318(1974); . ,933 P.2d 22,25(Colo. 1997) ("[D]uring cross-examination, facts may be brought out tending to discredit the witness by showing that his testimony is untrue or biased."). In this fashion, our system serves the dual masters of fairness and reliable fact-finding.

[113] By cross-examination a party is entitled to attack the credibility of facts which an adverse witness was called to prove:

In criminal cases, the right of cross-examination extends beyond the subjects testified to on direct testimony and includes the right to examine a witness on any facts tending to refute inferences or deductions arising from matters testified to on direct examination.

[114] ,581 A.2d 544,558-59(Pa. 1990).

[115] Looking at Swiger's out-of-court statement and his background, I suggest that he represents a classic example of a witness whose truth-telling might be called into serous doubt by cross-examination.⁵⁷

[116] The cross-examination could portray him as a man who led a life of violent crime — he committed unrelated felonies of escape, kidnapping and armed robbery. As part of this criminal life, he lied, he made excuses, and he blamed others so that he could gain some benefit for himself. The defendant's advocate could demonstrate specifically how Swiger's statement to police reflects this lifestyle of deception.⁵⁸He lied to police in Aurora about the killing. Two years later, he repeated this lie to the same officer at least fifteen times. Even after admitting his involvement, he continued to lie to police about the involvement of his girlfriend in the killing — that she went to the liquor store on a Sunday evening at the time of the shooting.

[117] Further, questioning might elicit facts to show how Swiger manipulated others to protect himself. For example, when asked by the Aurora Detectives whether he had sex with Tina Sparks, the sixteen-year-old eye-witness to the shooting, who drove to Tennessee with him and Clontz shortly after the shooting, he admitted he did but added "she told us she was seventeen."⁵⁹After the taped interview ended, Swiger told one of the Aurora officers that the Tennessee felony charges then pending, and in which a judge found probable cause, were false because he acted in self-defense. In short, Swiger could readily be depicted as leading a life of violent crime in which being truthful was but a hindrance.

[118] Had Swiger testified in person, his account would have been tested along these lines of inquiry and, undoubtedly others, as well. He would have had to face the defendant. The jury would have had the opportunity to assess his credibility by his demeanor and the way he answered questions. None of this, of course, occurred. Instead the jury heard only Swiger's voice and those of the police officers. There was no representation of thePage 333accused present during this conversation, which was, of course, unverified.

[119] By stating that Swiger and his statement were vulnerable to effective cross-examination, I do not mean to suggest that Swiger was not in fact telling the truth. When he confessed to the detectives, he may very well have told the truth. Certainly, a deceitful person may be truthful. However, this possibility should not cause us to lose sight of one of the mainstays of our criminal justice system: the jury must not be deprived of judging an accuser's truth-telling capacity and the defendant must not be deprived of his right to subject his accuser to adversarial questioning. We will never know the impact of Swiger's cross-examination because none occurred for the benefit of the defendant and the jury that voted to convict him.

[120] In my view, the cross-examination of Swiger would not have been of marginal utility. If his accusations were to be treated as evidence, fairness to the defendant and fairness to the jury that convicted him demanded his presence. [121] Lastly, I address the issue of whether the admission of Swiger's statement was harmless beyond a reasonable doubt. The United States Supreme Court has applied constitutional harmless error analysis toSixthAmendment confrontation cases. ,473 U.S. at 684. Under our case law, the standard for constitutional harmless error is that an appellate court must be confident beyond a reasonable doubt that the error did not contribute to the jury's verdict:

A constitutional error is harmless when the reviewing court is confident beyond a reasonable doubt that the error did not contribute to the verdict obtained. The inquiry 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 error.

[122] ,19 P.3d 1,8-9(Colo. 2001) (citations and quotation marks omitted).

[123] The accomplice's confession was central to the prosecution's case. The jury heard the two-and-a-half hour audiotape of the interrogation, and, during deliberations, requested a tape player to assist them in reaching their verdicts.

[124] Thus, I am not confident beyond a reasonable doubt that the error of admitting Swiger's confession did not contribute to the defendant's conviction. I would reverse the defendant's convictions and remand for a new trial.

[125] I am authorized to state that JUSTICE MARTINEZ joins in this concurrence and dissent.