COLORADO COURT OF APPEALS                                       2016COA184


Court of Appeals No. 11CA1182
City and County of Denver District Court No. 10CR81
Honorable Edward D. Bronfin, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Peter Wilson Sund Beller,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division IV
                          Opinion by JUDGE MILLER
                       Graham and J. Jones, JJ., concur

                        Announced December 29, 2016


Cynthia H. Coffman, Attorney General, John J. Fuerst III, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Peter Wilson Sund Beller,1 went to trial for felony

 murder and two counts of aggravated robbery. The aggravated

 robbery charges — along with the noncharged offenses of attempted

 aggravated robbery, robbery, and attempted robbery — served as

 predicate offenses underlying the felony murder count. The jury

 acquitted Beller of both aggravated robbery counts but hung on the

 felony murder count. The trial court held a second trial on the

 felony murder count with robbery and attempted robbery serving as

 predicate offenses. The second jury convicted Beller of felony

 murder.

¶2    We are unaware of authority from the United States Supreme

 Court or from Colorado directly controlling Beller’s argument that

 his retrial for felony murder violated the Double Jeopardy Clause.

 We ultimately conclude that it did not. We then conclude that

 admitting a codefendant’s hearsay statements did not violate the

 hearsay rules or our state Confrontation Clause. We therefore

 affirm Beller’s felony murder conviction.

 1The mittimus and papers filed in this court spell defendant’s last
 name as Beller. At trial, however, defendant spelled his name
 Bellar, and most of the papers filed in the trial court used that
 spelling. For convenience, we adhere to the spelling used in the
 mittimus and by the parties in this court.

                                   1
                            I. Background

¶3    Beller arranged to buy two ounces of marijuana through a

 man named Justin Singleton. Singleton brought Beller to his

 father’s house to complete the deal.

¶4    According to Singleton, he retrieved the two ounces of

 marijuana from his father’s room and gave it to Beller. Beller then

 pulled out a gun and demanded the rest of the marijuana in the

 house. Singleton alerted his father that Beller had a gun.

 Singleton’s father retrieved his own gun and walked into the

 hallway. Several shots were fired and Singleton’s father fell to the

 ground. Singleton grabbed a gun and started shooting; Beller fled.

¶5    Beller described a different version of these events. He said

 his friend, Scott Shaffer, drove him to meet Singleton. Shaffer

 stayed in the car when Beller got out and accompanied Singleton

 and one of Singleton’s friends to a house. While Singleton

 discussed the deal with his father in another room, Beller took out

 $600, set it on a table, and walked towards the other room to

 “haggle” with Singleton. As he walked he heard feet “shuffling,”

 looked back, and saw Singleton’s friend running out the door; his

 money was gone. Beller pulled out a gun to chase Singleton’s


                                   2
 friend. Singleton saw the gun and ran into another room.

 Singleton’s father then appeared and shot Beller in the chest.

 Although Beller did not remember shooting his gun, he was “pretty

 sure” he did. Singleton then shot at him, but he was able to run

 out of the house. Shaffer took him to the hospital.

¶6    Beller shot Singleton’s father in the head during these events

 and the father died as a result.

¶7    The People charged Beller with felony murder (with Singleton’s

 father as the victim), two counts of aggravated robbery (with

 Singleton and his father as victims), and menacing (with Singleton’s

 friend as the victim). The trial court’s jury instructions identified

 aggravated robbery, attempted aggravated robbery, robbery, and

 attempted robbery as predicate offenses for the felony murder

 count. The court also instructed the jury about the elements of

 aggravated robbery, robbery, and attempt. The verdict forms on the

 aggravated robbery counts did not permit the jury to consider any

 lesser included offenses. The jury found Beller not guilty of both

 aggravated robbery counts, guilty of menacing, and hung on the

 felony murder count. The trial court declared a mistrial on the

 felony murder count.


                                    3
¶8     Before the second trial, Beller moved for a judgment of

  acquittal on the felony murder count, arguing that the Double

  Jeopardy Clause precluded another trial on that count. The trial

  court denied Beller’s motion. In the second trial, the court’s

  instructions identified only robbery and attempted robbery as

  predicate offenses for felony murder, but those predicate offenses

  were not charged as stand-alone offenses. The jury found Beller

  guilty of felony murder.

                               II. Discussion

¶9     On appeal, Beller argues that his retrial for felony murder

  violated the Double Jeopardy Clause. He also argues that the court

  violated the hearsay rules and his confrontation rights by admitting

  several of Shaffer’s hearsay statements.

                             A. Double Jeopardy

¶ 10   We review double jeopardy claims de novo. People v. Frye,

  2014 COA 141, ¶ 30.

¶ 11   The Double Jeopardy Clause guarantees that no person shall

  “be subject for the same offence to be twice put in jeopardy of life or

  limb.” U.S. Const. amend. V; accord Colo. Const. art. II, § 18. This

  language embodies two rules bearing on this case. First, a


                                     4
  defendant may not be subjected to successive prosecutions for the

  same offense after an acquittal. Monge v. California, 524 U.S. 721,

  727-28 (1998). Second, issue preclusion prevents the prosecution

  from litigating again any issue that was necessarily decided by a

  jury’s not guilty verdict in a prior trial. See Yeager v. United States,

  557 U.S. 110, 119 (2009). Beller argues that both rules were

  violated when he was retried for felony murder after the first jury

  found him not guilty of aggravated robbery.

            1. Successive Prosecutions for the Same Offense

¶ 12   Beller’s argument starts with his claim that felony murder and

  all four original predicate offenses — aggravated robbery, attempted

  aggravated robbery, robbery, and attempted robbery — are the

  “same offense” for double jeopardy purposes. It is unclear whether

  the People dispute this claim, but, in any event, we agree with it.

¶ 13   For double jeopardy purposes, “the test to be applied to

  determine whether there are two offenses or only one, is whether

  each provision requires proof of a fact which the other does not.”

  Blockburger v. United States, 284 U.S. 299, 304 (1932). By

  definition, a greater offense and any lesser offense included in it are

  the “same” for double jeopardy purposes. Brown v. Ohio, 432 U.S.


                                     5
  161, 168 (1977). A predicate felony is a lesser included offense of

  the felony murder count it supports. Meads v. People, 78 P.3d 290,

  295 (Colo. 2003). Robbery is a lesser included offense of aggravated

  robbery. People v. Borghesi, 66 P.3d 93, 97 (Colo. 2003). And a

  charged offense necessarily includes an attempt to commit the

  charged offense. See Crim. P. 31(c). All of this means that the

  felony murder count against Beller and all four original predicate

  offenses were the same offense for double jeopardy purposes. We

  now turn to whether Beller was subjected to successive

  prosecutions.

¶ 14   The Double Jeopardy Clause, however, applies only if there

  has been an event — an acquittal, for example — that terminates

  the original jeopardy. Richardson v. United States, 468 U.S. 317,

  325 (1984). The failure of the jury to reach a verdict, however, is

  not an event that terminates jeopardy. Id. So a retrial following a

  hung jury does not offend the Double Jeopardy Clause. Id. at 324.

¶ 15   Beller, however, focuses not on the first jury’s failure to agree

  about felony murder but on its not guilty verdicts on the aggravated

  robbery counts. He assigns two consequences to the not guilty

  verdicts. First, he argues that the Double Jeopardy Clause


                                     6
  precluded a second trial for the greater offense of felony murder

  after a jury acquitted him of the lesser included aggravated robbery

  counts. Second, he argues that the first jury’s verdicts acquitted

  him of aggravated robbery and the lesser included offenses of

  attempted aggravated robbery, robbery, and attempted robbery. As

  a result, he continues, the Double Jeopardy Clause precluded

  further litigation over his guilt or innocence of robbery or attempted

  robbery, the predicate offenses in his second trial. We are not

  persuaded.

¶ 16   Fatal to Beller’s arguments is the fact that the People

  prosecuted him for felony murder and the aggravated robberies

  through the same information in the same case. In our view, the

  consequence of that fact is that Beller was not subjected to

  successive prosecutions.

¶ 17   Arguing otherwise, Beller relies on cases, such as Brown, in

  which a defendant was charged separately with crimes that

  constituted the “same offense.” The defendant in Brown was

  charged with and convicted of joyriding after he was caught driving

  a stolen car. 432 U.S. at 162. He was later charged with and

  pleaded guilty to auto theft for stealing the car. Id. at 162-63.


                                     7
  Applying the Blockburger test, the Court concluded that joyriding

  and auto theft constituted the same offense for double jeopardy

  purposes. Id. at 168. This led the Court to further conclude that

  the defendant had been twice placed in jeopardy for the same

  offense. Id. at 169-70.

¶ 18   Because Brown involved separate prosecutions, it does not

  address the situation before us, in which the People prosecuted

  Beller for lesser and greater offenses in a single case through a

  single information. The same is true of the other cases Beller relies

  on that discuss separate prosecutions. See Illinois v. Vitale, 447

  U.S. 410, 411-13 (1980) (juvenile was convicted of failing to reduce

  speed to avoid an accident and was subsequently charged with

  involuntary manslaughter); Harris v. Oklahoma, 433 U.S. 682, 682

  (1977) (the defendant was convicted of felony murder and later

  convicted under a separate information of a lesser included crime);

  United States v. Gooday, 714 F.2d 80, 82 (9th Cir. 1983) (noting

  that an “acquittal on the explicit charge therefore bars subsequent

  indictment on the implicit lesser included offenses”).

¶ 19   Stronger support for Beller’s position is Wilson v. Czerniak,

  355 F.3d 1151 (9th Cir. 2004). In Wilson, a jury acquitted the


                                    8
  defendant of intentional murder yet hung on greater counts of

  aggravated felony murder. Id. at 1152. The court concluded that

  the Double Jeopardy Clause precluded trying the defendant again

  for aggravated felony murder after he had been acquitted of the

  lesser included offense. Id. at 1157. We agree with Beller that

  Wilson suggests that he could not be retried for felony murder after

  being acquitted of the aggravated robbery counts. But we are not

  bound by a federal circuit court’s interpretation of the Federal

  Constitution. See People v. Rossman, 140 P.3d 172, 176 (Colo. App.

  2006).

¶ 20   We are persuaded not to follow Wilson’s interpretation of the

  Double Jeopardy Clause for two reasons. First, the Wilson court

  relied on Brown to support the proposition that “a criminal

  defendant may not be retried for a crime following an acquittal or

  conviction on a lesser included or greater inclusive offense.” 355

  F.3d at 1154. But, as we discussed earlier, Brown, unlike Wilson

  and this case, involved separate prosecutions. Yet the Wilson court

  did not acknowledge this difference or explain why it should not

  matter.




                                    9
¶ 21    Second, in order for the defendant in Wilson to have been

  found guilty of the greater offense of aggravated murder, each of the

  elements of the lesser offense of the intentional murder count had

  to have been established. Id. at 1155. Thus, trying the defendant

  again on aggravated murder necessarily would have given the

  prosecution a second chance to relitigate the elements of intentional

  murder, one or more of which the jury had already found lacking.

  See Brown, 432 U.S. at 165 (Double Jeopardy Clause protects the

  accused from attempts to relitigate facts underlying prior acquittal).

  In this case, however, Beller could have been found guilty of the

  greater offense of felony murder without committing all of the

  elements of aggravated robbery because aggravated robbery was not

  the only predicate offense specified by the prosecution. For

  example, the second jury could have found that Beller did not take

  anything of value, but nonetheless attempted to commit simple

  robbery — a predicate offense relied on by the prosecution in both

  trials.

¶ 22    Shortly after Wilson, a different panel of the Ninth Circuit

  concluded under similar circumstances that whether the relevant

  greater and lesser offenses are part of the same indictment “makes


                                     10
  all the difference” for double jeopardy purposes. United States v.

  Jose, 425 F.3d 1237, 1242 (9th Cir. 2005). The defendants in Jose

  were convicted of felony murder and predicate offenses. Id. at

  1240. Their predicate offense convictions were affirmed and their

  felony murder convictions reversed on appeal. Id. The Jose panel

  rejected the defendants’ argument that the Double Jeopardy Clause

  precluded retrial for felony murder, concluding that “final

  convictions on the underlying predicate felonies do not trigger

  double jeopardy protections against retrial of the greater offense

  originally charged under the same indictment in the same trial.” Id.

  at 1248.

¶ 23   We are mindful of two differences between Jose and this case.

  First, in Jose the prosecution sought a retrial after an appeal; in

  this case the prosecution sought a retrial after a hung jury.

  Second, the defendants in Jose were convicted of lesser included

  offenses; Beller was acquitted of lesser included offenses.

¶ 24   Neither difference renders Jose’s analysis inapplicable here.

  Jeopardy continues “whether the retrial is precipitated by a hung

  jury or a defendant’s successful reversal of conviction.” Id. at 1244.

  And the Jose panel found insignificant for its purposes whether


                                    11
  jeopardy terminated on one charge because of a conviction as

  opposed to an acquittal. Id. at 1244-45. At bottom, this case

  shares with Jose the features that the panel considered relevant:

  “the greater and lesser included offenses were tried together under

  the same indictment, jeopardy terminated as to one of the offenses,

  but did not end on the charge sought to be retried.” Id. at 1245.

¶ 25   We agree with the panel’s analysis in Jose and apply it here to

  conclude that jeopardy did not terminate on the felony murder

  count after Beller’s first trial even though he was acquitted of

  predicate offenses. And because jeopardy did not terminate on the

  felony murder count, the Double Jeopardy Clause did not preclude

  retrial on that count.

¶ 26   A division of the Court of Appeals of Arizona reached the same

  conclusion in a similar case. See Lemke v. Rayes, 141 P.3d 407

  (Ariz. Ct. App. 2006). As relevant here, the defendant in Lemke was

  charged with felony murder with armed robbery as the predicate

  offense and was also charged with armed robbery. Id. at 410-11.

  The jury hung on the felony murder count and convicted the

  defendant of theft, a lesser included offense of armed robbery. Id.

  at 411. The Lemke division assumed that by convicting the


                                    12
  defendant of theft and leaving blank the armed robbery verdict

  form, the jury impliedly acquitted him of armed robbery. Id. at 412-

  13. Nevertheless, the division ultimately concluded that the Double

  Jeopardy Clause did not preclude another trial on the felony

  murder count: “Even though we have deemed [the defendant’s]

  jeopardy on the armed robbery offense as terminated based on the

  concept of implied acquittal, the inability of the jury to reach a

  verdict on the felony-murder count at his first trial means that [the

  defendant’s] jeopardy as to that count never terminated.” Id. at

  415; see also Lemke v. Ryan, 719 F.3d 1093, 1103-04 (9th Cir.

  2013) (rejecting double jeopardy claim for same defendant on

  petition for habeas corpus relief); Delgado v. Fla. Dep’t of Corr., 659

  F.3d 1311, 1330-31 (5th Cir. 2011) (relying on Jose to reject double

  jeopardy claim).

¶ 27   In addition, our conclusion accords with authority from the

  United States Supreme Court and another division of this court.

  The Supreme Court has declined to hold “that a determination of

  guilt and punishment on one count of a multicount indictment

  immediately raises a double jeopardy bar to continued prosecution

  on any remaining counts that are greater or lesser included offenses


                                     13
  of the charge just concluded.” Ohio v. Johnson, 467 U.S. 493, 501

  (1984). A division of this court has also held that the Double

  Jeopardy Clause allows retrial on a greater offense if the jury

  deadlocks on that greater offense but convicts on a lesser included

  offense. People v. Aguilar, 2012 COA 181, ¶¶ 21-22. Johnson and

  Aguilar do not square with the principle underlying Beller’s

  arguments — that an event terminating jeopardy on one count also

  terminates jeopardy on any other count in the same case that

  constitutes the “same offense” under Blockburger.

¶ 28   Contrary to Beller’s argument, we do not think Doubleday v.

  People, 2016 CO 3, bolsters his case. In Doubleday, the supreme

  court held that “to establish that a defendant has committed or

  attempted to commit a predicate offense so as to support a felony

  murder conviction, the prosecution must prove beyond a reasonable

  doubt all elements of that predicate offense, including the

  inapplicability of any properly asserted affirmative defense.” Id. at

  ¶ 26. As Beller concedes, Doubleday did not address “any double

  jeopardy concerns.” For that reason, we decline Beller’s invitation

  to attempt to apply the court’s reasoning in Doubleday to support

  his double jeopardy arguments.


                                    14
¶ 29   We note, however, that if the first jury had found Beller guilty

  of felony murder while acquitting him on aggravated robbery,

  Doubleday would not require reversal because the jury could have

  based such a verdict on the predicates of simple robbery or

  attempted simple robbery. See id. at ¶¶ 2, 22. That is precisely

  what the second jury did in the retrial conducted during the

  “continuation of the initial jeopardy” caused by the hung jury. See

  Yeager, 557 U.S. at 118.

¶ 30   We also reject Beller’s argument that his acquittals for

  aggravated robbery prevented further litigation as to his

  commission of the predicate offenses of robbery and attempted

  robbery in his second trial. True, “subjecting [a] defendant to

  postacquittal factfinding proceedings going to guilt or innocence

  violates the Double Jeopardy Clause.” Smalis v. Pennsylvania, 476

  U.S. 140, 145 (1986). But in Smalis, unlike in this case, the

  prosecution sought to resume trial on the same counts for which

  the defendants had already secured acquittals. Id. at 144-45. For

  that reason, we conclude that Smalis does not apply here, where

  the People sought a second trial only on a count for which jeopardy

  had not terminated.


                                   15
                           2. Issue Preclusion

¶ 31   The Double Jeopardy Clause embodies the doctrine of issue

  preclusion, a doctrine providing “simply that when an issue of

  ultimate fact has once been determined by a valid and final

  judgment, that issue cannot again be litigated between the same

  parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443

  (1970); see also Bravo-Fernandez v. United States, 580 U.S. ___, ___,

  n.1, 137 S. Ct. 352, 356 n.1 (2016). In other words, the

  prosecution may not relitigate any issue that a jury necessarily

  decided through a not guilty verdict in a prior trial. Yeager, 557

  U.S. at 119. An acquittal therefore might preclude retrial on counts

  on which the same jury hangs. Id. at 125. The doctrine will not

  apply, however, if “a rational jury could have grounded its verdict

  upon an issue other than that which the defendant seeks to

  foreclose from consideration.” Ashe, 397 U.S. at 444 (citation

  omitted).

¶ 32   To determine what a jury necessarily decided, courts examine

  the record of the prior proceeding, including the pleadings, the

  evidence, the charge, and other relevant information. Yeager, 557

  U.S. at 119-20. An unresolved count, however, is not “relevant”


                                   16
  information: “the fact that a jury hangs is evidence of nothing —

  other than, of course, that it has failed to decide anything.” Id. at

  121, 125.

¶ 33   We disagree with Beller’s argument that the first jury’s not

  guilty verdicts on the aggravated robbery counts necessarily

  included a finding that he was not guilty of robbery and attempted

  robbery, the predicate offenses in his second trial. The aggravated

  robbery counts required proof that Beller committed robbery — that

  he knowingly took “anything of value from the person or presence of

  another by the use of force, threats, or intimidation” — and that

  “during the act of robbery or immediate flight therefrom” he

  knowingly wounded or struck the person robbed or any other

  person with a deadly weapon. See §§ 18-4-301(1), 18-4-302(1)(b),

  C.R.S. 2016.

¶ 34   The evidence at the first trial arguably conflicted about

  whether Beller actually took marijuana from the victim’s home. So

  the jury could have found Beller not guilty of the aggravated

  robberies based on a finding that he did not take anything of value

  from the victims. See § 18-4-301(1). The aggravated robbery

  verdicts therefore did not necessarily resolve whether Beller


                                    17
  attempted to rob the victims. Alternatively, the aggravated robbery

  verdicts could have been the product of a finding that Beller did not

  knowingly wound or strike the victim with a deadly weapon based

  on Beller’s repeated testimony that he did not remember firing his

  gun. See § 18-4-302(1)(b). And so the aggravated robbery verdicts

  did not necessarily resolve whether Beller committed robbery. For

  these reasons, issue preclusion did not bar Beller’s second trial for

  felony murder with robbery and attempted robbery as predicate

  offenses.

¶ 35   We do not agree with Beller that the Supreme Court’s decision

  in Yeager and our supreme court’s decision in Boulies v. People,

  770 P.2d 1274 (Colo. 1989), bar the second trial on felony murder.

¶ 36   In Yeager, the defendant was charged with securities fraud

  and insider trading. 557 U.S. at 113. The jury acquitted the

  defendant on the fraud counts but hung on the insider trading

  counts. Id. at 115. The prosecution sought to retry some of the

  insider trading counts, the trial court agreed, and the defendant

  took an interlocutory appeal, ultimately to the Supreme Court. The

  Court expressly held that double jeopardy “precludes the

  Government from relitigating any issue that was necessarily decided


                                    18
  by a jury’s acquittal in a prior trial.” Id. at 119 (emphasis added);

  see also Bravo-Fernandez, 580 U.S. at ___, 137 S. Ct. at 358

  (“[I]ssue preclusion ordinarily bars relitigation of an issue of fact or

  law raised and necessarily resolved by a prior judgment.”)

  (emphasis added). It ultimately concluded that if the defendant’s

  possession of insider information was a critical issue of ultimate

  fact for all of the charges, then a jury verdict that “necessarily”

  decided that issue in the defendant’s favor would protect him from

  prosecution of any charge for which that is an essential element.

  Yeager, 557 U.S. at 123. The Court then remanded the case to the

  lower courts to resolve that issue. Id. at 126.

¶ 37   In this case, the acquittal on the aggravated robbery charges

  did not necessarily decide whether Beller engaged in simple or

  attempted robbery. Yeager, therefore, does not support preclusion

  of Beller’s retrial on felony murder relying only on the simple and

  attempted robbery predicates that were also before the first jury.

¶ 38   The defendant in Boulies was convicted and sentenced

  consecutively after a single trial on charges of both felony murder

  and aggravated robbery; the sole predicate for the felony murder

  charge was the same aggravated robbery. 770 P.2d at 1277. The


                                     19
  supreme court declined to reach the constitutional double jeopardy

  issue because it concluded that the judicial rule of merger

  “require[d] that the defendant’s separate conviction for aggravated

  robbery be vacated.” Id. at 1281. The decision therefore has no

  direct application to this case, where there is no possibility of Beller

  facing convictions and consecutive sentences for both felony

  murder and the separate aggravated robbery charges of which he

  was acquitted.

¶ 39   We are also not persuaded by Beller’s reliance on People v.

  Wilson, 852 N.W.2d 134 (Mich. 2014), abrogated by Bravo-

  Fernandez, 580 U.S. ___, 137 S. Ct. 352, and Wright v. State, 515

  A.2d 1157 (Md. 1986), abrogated on other grounds by Price v. State,

  949 A.2d 619 (Md. 2008). The Wilson majority concluded that the

  Double Jeopardy Clause precluded retrial of the defendant for

  felony murder after he had been acquitted of the only predicate

  felony. 852 N.W.2d at 136. Similarly, Wright held that the

  defendant’s acquittal for the only predicate felony “was a bar to

  further criminal proceedings on a felony murder theory sharing a

  common essential element.” 515 A.2d at 1167. Wilson and Wright

  share the same crucial difference from this case: the defendants in


                                     20
  those cases were acquitted of the single predicate offense

  underlying each of the felony murder counts. Here, in contrast, the

  first jury expressly acquitted Beller of aggravated robbery, only one

  of the four predicate offenses.

¶ 40   Accordingly, Beller’s retrial and conviction of felony murder

  was not barred by issue preclusion.

                                 B. Hearsay

¶ 41   Beller next argues that the trial court violated the hearsay

  rules and his confrontation rights when it admitted several

  statements that Shaffer made to other witnesses. We disagree.

                            1. Factual Background

¶ 42   Shaffer did not testify at Beller’s trial. The parties agreed that

  he was unavailable as a witness because he had invoked his Fifth

  Amendment privilege against self-incrimination. The trial court

  permitted several witnesses to testify about statements Shaffer

  made the night of the shooting.

¶ 43   Samantha Kern, Shaffer’s girlfriend, testified that she was with

  her friend, Sunni Torres, at Torres’ apartment the night of the

  shooting. According to Kern, Shaffer came to the apartment and

  told her the following:


                                     21
          Beller had been shot and had shot Singleton’s father.

          The car that Shaffer was driving was “around the block or a

           block away” when the shooting occurred.

          Beller told Shaffer that he had been shot and that he needed

           to go to the hospital. Shaffer told him that if he went to the

           hospital, he would be in trouble. Beller replied that he

           would die if he did not go to the hospital.

          At first, Shaffer did not think Beller had been shot, but then

           he realized Beller was hurt “because he was kind of passing

           out.”

          Shaffer dropped Beller off a block away from the hospital.

¶ 44     Torres also testified, claiming that Shaffer said the following at

  her apartment:

        “[H]e’s got this other kid that was going to set up this other

         kid’s dad who grows marijuana for robbery.”

        Something had gone wrong, Singleton’s father had been shot,

         and Beller had gone to jail.

        “The father” had been shot “where the kid’s dad grew

         marijuana.”



                                        22
        Shaffer was going to meet Beller’s girlfriend.

¶ 45     Torres agreed on cross-examination, however, that her

  memory about exactly what Shaffer said at the apartment was “a

  little fuzzy” and that she was unsure whether she learned

  information from Shaffer, from other people, or from the media.

  She also said that Shaffer had not used the word “robbery.”

¶ 46     Lauren Frink, Beller’s girlfriend, testified that on the night of

  the shooting she spoke to Shaffer on the phone and then went to

  his house. When she arrived, Shaffer said Beller was in the

  hospital.

¶ 47     The court admitted a video recording of a police interview with

  Frink. In the interview, Frink said that Shaffer told her the

  following on the night of the shooting.

          Beller insisted that Shaffer take him somewhere so that

           Beller could rob the “place.”

          Shaffer drove Beller and gave him a pistol. The gun was not

           Shaffer’s. Beller was trying to rob Singleton.

          “The guy had some pot over there.”

          Shaffer parked around the block or down the street.




                                      23
     Shaffer heard one shot when he was sitting outside. A few

          moments later, he heard someone say, “Don’t do it, [Beller].”

          Then he heard “a succession of shots.”

     Shaffer thought Beller shot somebody.

     Beller came running out saying, “They got me. They got

          me.” Beller also said, “I’m hit.”

     Beller had been shot.

     Shaffer did not think Beller had been shot because there

          was not much blood. He tried to talk Beller out of going to

          the hospital, telling him that if he went to the hospital, he

          would be turning himself in. Beller said he would die unless

          he went to the hospital.

     Shaffer drove Beller to the hospital.

Frink told police that after she screamed at Shaffer, demanding that

he admit that he gave Beller the gun, Shaffer said, “I gave him the

gun.” Frink also claimed during the interview that Shaffer was

worried about the police showing up at his house when she spoke

to him.




                                     24
                             2. Preservation

¶ 48   Beller asserts that admitting Shaffer’s statements violated the

  Federal and State Confrontation Clauses. He also contends that

  the statements were inadmissible hearsay.

¶ 49   The Federal Confrontation Clause is implicated only by

  testimonial hearsay. Michigan v. Bryant, 562 U.S. 344, 354 (2011).

  Beller neither challenges the trial court’s ruling that Shaffer’s

  statements were nontestimonial nor presents a meaningful

  argument related to the Federal Confrontation Clause. So we will

  not consider his federal claim. See People v. Simpson, 93 P.3d 551,

  555 (Colo. App. 2003) (declining “to consider a bald legal

  proposition presented without argument or development”).

¶ 50   The People claimed in the trial court that Shaffer’s statements

  were admissible under the exceptions to the hearsay rule for excited

  utterances under CRE 803(2) and for statements against interest

  under CRE 804(3). The trial court overruled Beller’s objections with

  thoughtful analysis based on both exceptions. On appeal, the

  People dispute whether Beller preserved the argument relied on in

  this court for challenging the admission of the statements under the

  excited utterance exception, but do not dispute that Beller’s


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  arguments supporting his objections to admissibility as statements

  against interest were preserved. Because we conclude the

  statements at issue were properly admitted under the statements

  against interest exception, we need not consider whether the excited

  utterance arguments were preserved.

¶ 51   The People concede that Beller preserved his claim under

  Colorado’s Confrontation Clause.

                   3. Colorado’s Confrontation Clause

¶ 52   We review de novo whether a trial court violated a defendant’s

  confrontation rights. People v. Smalley, 2015 COA 140, ¶ 20.

¶ 53   Our State Confrontation Clause bars a nontestimonial hearsay

  statement (if the defendant has not had a prior opportunity for

  cross-examination) unless the declarant is unavailable and the

  statement bears sufficient indicia of reliability. People v. Phillips,

  2012 COA 176, ¶ 84. A statement is sufficiently reliable for

  confrontation purposes if it falls within a firmly rooted hearsay

  exception or if it holds particularized guarantees of trustworthiness.

  People v. Hagos, 250 P.3d 596, 624 (Colo. App. 2009).

¶ 54   To determine whether a statement bears particularized

  guarantees of trustworthiness, courts assess the totality of the


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  circumstances surrounding the statement. See Bernal v. People, 44

  P.3d 184, 197 (Colo. 2002). Factors relevant to a statement’s

  trustworthiness include where, when, and how the statement was

  made; to whom the statement was made; what prompted the

  statement; what the statement contained; and what may have

  motivated the declarant to make the statement. See id.

              4. Hearsay and Statements Against Interest

¶ 55   Hearsay — an out-of-court statement offered in evidence to

  prove the truth of the matter asserted — is generally inadmissible.

  See CRE 801(c); CRE 802; People v. McFee, 2016 COA 97, ¶ 10.

  But there are many exceptions to the general rule prohibiting

  hearsay. One such exception permits courts to admit statements

  against the declarant’s interest. CRE 804(b)(3). A statement

  against interest, as relevant here, is a statement that (1) “a

  reasonable person in the declarant’s position would have made only

  if the person believed it to be true because, when made,” it had so

  great a tendency to expose the declarant to criminal liability; and (2)

  “is supported by corroborating circumstances that clearly indicate

  its trustworthiness.” Id.




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¶ 56   A statement that inculpates the accused in addition to the

  declarant is admissible under CRE 804(b)(3) only if it satisfies three

  requirements. Bernal, 44 P.3d at 195-96. First, the declarant must

  be unavailable as a witness. Id. at 196. Second, the statement

  must tend to subject the declarant to criminal liability. Id. And

  third, the prosecution must establish by a preponderance of the

  evidence that corroborating circumstances clearly demonstrate the

  statement’s trustworthiness. Id. To determine whether

  corroborating circumstances demonstrate the statement’s

  trustworthiness, courts must limit their analysis to circumstances

  surrounding the statement itself; they should not rely on other

  independent evidence implicating the defendant. Id.

¶ 57   CRE 804(b)(3) allows courts to admit not only a precise

  statement against interest but also “related, collaterally neutral

  statements.” People v. Newton, 966 P.2d 563, 578 (Colo. 1998).

¶ 58   The exception to the hearsay rule for statements against

  interest is not a “firmly rooted” exception. Bernal, 44 P.3d at 197.

  But CRE 804(b)(3)’s requirement that a statement against interest

  offered against an accused be supported by “corroborating

  circumstances” incorporates the Confrontation Clause’s


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  requirement that a statement bear particularized guarantees of

  trustworthiness. See Bernal, 44 P.3d at 196-97, 199.

                              5. Analysis

¶ 59   To begin, we note that no one disputes that Shaffer was

  unavailable as a witness. So the unavailability requirement of both

  the hearsay exception for statements against interest and the

  Confrontation Clause is satisfied.

¶ 60   We turn, then, to whether Shaffer’s statements tended to

  expose him to criminal liability and conclude that they did. This

  question focuses on whether a reasonable person in the declarant’s

  position would not have made the statements unless the person

  believed them to be true. Newton, 966 P.2d at 576. Shaffer’s

  statements exposed him to criminal liability because they describe

  him and Beller planning and attempting to rob the Singletons of

  marijuana. For that reason, a reasonable person in his position

  would not have made those statements believing them to be untrue.

¶ 61   We are not persuaded by Beller’s arguments to the contrary.

  In his view, many of Shaffer’s statements were not against Shaffer’s

  own interest because they “attempted to shift blame” to Beller. But

  the mere fact that Shaffer’s statements also implicated Beller does


                                   29
  not mean that they did not expose Shaffer to criminal liability. Cf.

  United States v. Monserrate-Valentine, 729 F.3d 31, 53 (1st Cir.

  2013) (noting that the declarant’s statement that he and four others

  robbed a truck was “plainly self-inculpatory, even though it also

  inculpated other members of [a] conspiracy”). Beller also argues

  that a reasonable person would not understand complicity liability

  or the crime of conspiracy, and therefore would not understand that

  Shaffer’s statements exposed him to criminal liability. Although a

  reasonable person may not know the precise legal requirements of

  complicity or conspiracy liability, a reasonable person would know

  that participating in a crime could create criminal liability.

¶ 62   The question becomes whether Shaffer’s statements are

  sufficiently supported by corroborating circumstances, a question

  that, under the circumstances of this case, incorporates the

  requirement of our State Confrontation Clause that the statements

  bear particularized guarantees of trustworthiness.

¶ 63   We agree with the trial court that the circumstances

  surrounding Shaffer’s statements contain such guarantees. Shaffer

  made the statements at Torres’ apartment and his own home to his

  girlfriend and two acquaintances. Moreover, the statements


                                     30
  occurred shortly after the events they described. All of these

  circumstances contribute to the statements’ trustworthiness. See

  People v. Jensen, 55 P.3d 135, 139 (Colo. App. 2001) (concluding

  that a codefendant’s statements were trustworthy because they

  were made to a friend while the codefendant was not in police

  custody).

¶ 64   The circumstances surrounding Shaffer’s statements contrast

  sharply with those found in the cases on which Beller principally

  relies, Lilly v. Virginia, 527 U.S. 116 (1999), and Stevens v. Ortiz,

  465 F.3d 1229 (10th Cir. 2006). In both Lilly and Stevens, the

  declarant was in custody and made statements in response to

  police questioning. Lilly, 527 U.S. at 139; Stevens, 465 F.3d at

  1240-42. Further,

              [c]ourts have long recognized that an
              accomplice’s confession in police custody “is
              presumptively unreliable as to the passages
              detailing the defendant’s conduct or culpability
              because those passages may well be the
              product of the codefendant’s desire to shift or
              spread blame, curry favor, avenge himself, or
              divert attention to another.”

  Stevens, 465 F.3d at 1241 (quoting Lee v. Illinois, 476 U.S. 530, 545

  (1986)). The circumstances surrounding Shaffer’s statements,



                                     31
  unlike those surrounding custodial confessions, do not suggest that

  Shaffer had a motive to shift blame, curry favor, or divert attention

  to another. See Jensen, 55 P.3d at 139 (noting that statements

  made to a friend were not “a result of leading questions or coercion,

  or made in the hope of any lenity or favorable treatment”).

¶ 65   Beller also argues that Shaffer’s statements were unreliable

  because of credibility problems of the witnesses who described

  Shaffer’s statements at trial. But those witnesses were subject to

  cross-examination, so their “credibility was a question for the jury

  to determine.” Id.

¶ 66   For these reasons, we conclude that the trial court did not err

  when it admitted Shaffer’s statements under the hearsay exception

  for statements against interest. Nor did admitting them violate the

  Colorado Confrontation Clause.

                             III. Conclusion

¶ 67   The judgment is affirmed.

       JUDGE GRAHAM and JUDGE J. JONES concur.




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