Friday, February 22, 2008
Unavailable For A Limited Time Only: Court Finds Co-Defendant Status Renders Declarant "Unavailable" Under Rule 804(a)
The Colorado Court of Appeals' recent opinion in People v. Reed, 2008 WL 323773 (Colo.App. 2008), contains an interesting interpretation of Colorado Rule of Evidence 804, Colorado's counterpart to Federal Rule of Evidence 804. In Reed, three men robbed a bank in Colorado Springs, and Edgar Dewond Reed, Al J. Williams, and Calvin Clark were charged with numerous offenses arising from the robbery; Clark accepted a plea agreement and testified against Reed and Williams, who were tried together. See id. at *1. At trial, over Reed's objection, the trial judge allowed Williams' cellmate, Matthew Graves, to testify about statements that Williams made to him, implicating both Williams and Reed in the robbery. See id. at *1. The court admitted the testimony on the ground that Williams' statements constituted statements against interest under Colorado Rule of Evidence 804(b)(3). See id. at *1. It did so even though Williams had not yet exercised his Fifth Amendment right against self-incrimination; indeed, Williams later testified. See id. at *1.
On appeal, the Colorado Court of Appeals noted that for Colorado Rule of Evidence 804(b)(3) to apply, Williams needed to be "unavailable" pursuant to Colorado Rule of Evidence 804(a). See id. at *2. The court first noted that Williams was not "unavailable" under Colorado Rule of Evidence 804(a)(1), which indicates that a declarant is unavailable if he "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement." See id. at *2. The court concluded that this portion of the rule did not apply because Williams had not invoked his Fifth Amendment right when Graves testified. See id. at *2. Indeed, it found that Williams was not "unavailable" pursuant to any of the five situations listed in Colorado Rule of Evidence 804(a). See id. at *2.
The court, however, found that the five situations listed in Colorado Rule of Evidence 804(a) was only a partial list of the situations under which a court can deem a declarant "unavailable," and it concluded "that a declarant's status as a codefendant in a joint trial renders him or her unavailable...." Id. at *3. The court came to this conclusion because "had the trial court required Williams to decide whether he would testify before the People called Graves as a witness, it would have violated Williams's constitutional right to decide whether and when to testify."
The Reed case raises several interesting issues, not the least of which is whether the court was right that a declarant's status as a codefendant in a joint trial renders him or her unavailable...." The question I want to address, however, is one that I thought would have been resolved, but which I did not find addressed after a Westlaw search: What happens if a declarant is deemed "unavailable" under Rule 804(a), allowing for the admission of hearsay under one of the Rule 804(b) exceptions, but then the declarant later becomes available?
Clearly, this is what happened in the Williams case. He was "unavailable" when Graves testified, but Williams then later became available when he testified. Does this mean that defense counsel could have asked that Graves' testimony be stricken once Williams testified? Or should Rule 804(a) be a snapshot view of admissibility, where testimony is allowed based upon the declarant's unavailability at the moment, with any changes in availability not changing that ruling? For instance, let's say that a witness is extremely ill, leading to him being declared "unavailable" under Rule 804(a)(4) and to the admission of his statements against interest. But that declarant has a quicker than expected recovery or the trial extends longer than expected, and he now testifies at trial. Should this lead to the prior testimony being stricken? My gut feeling is that it should, but I was unable to find a discussion of this issue in my Westlaw search or the Reed case.