People v. Newton

Justice KOURLIS,

concurring and specially concurring.

I concur with the result reached by the majority and with the court’s analysis in Parts I and III. I write separately only to express my concern that the majority’s analysis in Part II extends beyond the scope of our grant of certiorari.

We granted certiorari in this case to determine whether the court of appeals erred in adopting or applying the rule of Williamson v. United States, 512 U.S. 594 , 114 S.Ct. 2431 , 129 L.Ed.2d 476 (1994), regarding the hearsay exception for statements against penal interest. The court of appeals determined that Cummins’s statement at issue was improperly admitted into evidence, and reversed and remanded for a new trial on that basis alone. The majority resolves the certiorari issue by concluding that the court of appeals did err. Therefore, the majority affirms the judgment of the court of appeals, but sets forth a new test for admissibility of Cummins’s statement on retrial.

In the context of seeking to admit Cum-mins’s hearsay statement at trial, the People called Cummins to the stand knowing that she would invoke her privilege against self-incrimination. In fact, she did repeatedly invoke her privilege in the presence of the jury-

The court of appeals announced at the beginning of its opinion that a “party may not call a witness to testify if that party knows the witness will exercise her privilege against self incrimination.” People v. Newton, 940 P.2d 1065, 1067 (Colo.App.1996). However, the court of appeals discussed the issue solely in the context of determining whether or not the subsequent admission of Cummins’s out-of-court statement was harmless. Since the court of appeals reversed and remanded on the basis of the hearsay statement, it did not specifically address the impact of Cummins’s invocation of privilege on the witness stand. It did not speak to the question of when and whether calling a witness to the stand knowing that such witness would invoke the privilege against self-incrimination should constitute reversible error, and it did not address the standards that should govern such an inquiry.

Because the court of appeals did not fully address the self-incrimination question, neither party sought certiorari on that issue. Neither party briefed the issue of the consequences that should follow from such an error. The People argued merely that this court should reverse the decision of the court of appeals concerning the admissibility of Cummins’s narrative and remand for consideration of the remaining appellate claims. 1

*581 The majority reads the court of appeals’ opinion as implicitly concluding that the error in permitting the People to call Cummins to the stand knowing that she would invoke her privilege was not automatically reversible. See maj. op. at 569. The majority then specifically joins the issue of whether such an error was reversible in this instance, and delineates the appropriate standards.

The majority makes that choice in the interests of judicial economy. See maj. op. at 570 n. 8. Although I certainly share the goals of minimizing expense and passage of time in litigation and maximizing the use of judicial resources, I nonetheless would decline to reach an issue that is not properly before us. See In re Marriage of Booker, 833 P.2d 734, 740 (Colo.1992) (Vollack, J., concurring); Vigoda v. Denver Urban Renewal Auth., 646 P.2d 900, 907 (Colo.1982). The immediate danger is that we do not have the benefit of the parties’ briefs and argument on point, as well as the benefit of any amicus briefs that might be tendered. The further danger is more systemic. This court is principally a court of certiorari jurisdiction. When we grant certiorari on a particular issue, our review is then confined to that issue. See C.A.R. 53 (“The statement of an issue presented will be deemed to include every subsidiary issue clearly comprised therein. Only the issues set forth or clearly comprised therein will be considered.”).

I do not view the issue presented and resolved in Part II of the majority opinion to be included within our grant of certiorari, and I do not think the court has the discretion to entertain issues not properly before it. I would, thus, reverse the court of appeals on the admissibility of Cummins’s statement and remand to that court for further resolution of remaining appellate issues, including the impact of Cummins’s invocation of the privilege against self-incrimination before the jury.

I am authorized to state that JUSTICE SCOTT joins in this concurrence and special concurrence.

. The majority points out that the People discussed in the People's reply brief on certiorari *581 and during oral arguments the impact of the trial court's decision to allow the prosecution to repeatedly question Cummins despite her claim of Fifth Amendment privilege. According to the majority, these discussions by the People "are consistent" with the majority’s decision to take a position on this issue. In the People's reply brief, however, the issue was raised solely to point out that the Respondent's opposition brief had improperly characterized the court of appeals’ holding on the Williamson issues as dicta, when in fact the court of appeals’ analysis of CRE 804 determined the outcome of the case. The interrelationship between the evidentiary issue and the invocation of privilege issue has been contextual only. As such, the invocation of privilege issue is not necessary or subsidiary to our certiorari issues.