Appeal from Morgan Circuit Court (CC-13-0897)
Devonte Cortes Acosta was convicted of first-degree burglary, a violation of § 13A-7-5, Ala. Code 1975, and was sentenced to 156 months in prison.
On appeal, Acosta argues that the trial court improperly prevented him from putting on a defense by not allowing him to present a statement one of the alleged perpetrators made to a police officer. He does not challenge the sufficiency of the evidence, so a short rendition of the evidence is all that is necessary. James W. Benford, Sr., lived with his three sons and wife. On the day of the burglary, Benford and two of his sons were in the house, and his wife was in their truck, which was parked in front of the house. Benford heard men yelling, "Hey, where is your boy?" (R. 72.) Three armed black men then entered the house. The men continued to ask about the third son, who was not at home, and they stated that they wanted their "'property'" back from him. (R. 73, 74.) One of the men demanded that Benford get down, and he pushed and kicked Benford. One of the men had a shotgun and the other two men had pistols. They asked one of the sons if there was anything worth taking in the house, and they rummaged through the house. The men were in the house for approximately 15 to 30 minutes. Benford and his sons who were present testified at trial that they recognized Acosta, who had been to their house before and who had played video games there, as well as one of the other men (R.J.). The youngest son recognized all three men. They identified Acosta at trial as one of the men who had been at the house and who had been armed with a pistol.
On cross-examination of Detective Josh Fisher, the officer who took the victims' statements, Detective Fisher testified that Benford's trial testimony differed from the information he had previously given in his statement. Detective Fisher testified that Benford originally stated that he was unable to identify any of the suspects or to give any description of the men because the shotgun was in his face and he was afraid.
Acosta gave a statement to the police denying involvement in the burglary. At trial, Acosta denied having been involved in the offense and presented alibi-witness testimony. R.J.'s mother testified that Acosta was not with her son and the other men but that Acosta and his younger brother had arrived at her house after R.J. and the others had left. Acosta, she stated, left her house just before her son and the others returned. Acosta's brother testified that he had been with Acosta during that time and confirmed R.J.'s mother's testimony. He further testified that they had not broken into Benford's house.
Acosta then called Detective Fisher, who previously testified for the State that he had taken a statement from R.J. during the investigation. Defense counsel asked Detective Fisher if R.J. had stated whether Acosta was involved in the burglary. The State objected on the grounds that the question called for hearsay, and defense counsel responded that the declarant, R.J., was unavailable because he had the right not to incriminate himself by taking the stand. The trial court agreed that the witness was unavailable, see Rule 804(a)(1), Ala. R. Evid. (Providing that a witness is unavailable when he "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement"). However, the trial court noted that R.J.'s statement was not made under oath; therefore, to be admissible under Rule 804, Ala. R. Evid., it must be a statement against interest.
The State argued that the statement was not against R.J.'s proprietary or pecuniary interest. The trial court then stated that it would read the statement to determine what R.J. had said, because all that was proffered was that R.J. had stated that Acosta was not involved in the offense. The record indicates that there was a pause in the proceedings at that time, but it is unclear whether the trial court read the statement. (R. 193-94.) After further argument, the trial court sustained the State's objection.
Acosta argues on appeal that he was prevented from presenting a proper defense at trial because Detective Fisher's testimony concerning the contents of R.J.'s statement was excluded. Acosta's argument is based on the principles explained in Chambers v. Mississippi, 410 U.S. 284 (1973). In its brief on appeal, the State asserts that Acosta's argument was not preserved for appellate review. The State contends that Acosta's arguments at trial centered solely on his contention that the witness's statement fell within an exception to the hearsay rule.
However, when Acosta first attempted to elicit the hearsay testimony from Detective Fisher, the following exchange occurred:
"[Prosecutor]: Objection on the same ground. Objection, Judge.
"[Defense counsel]: I'm asking his impression as a law enforcement --
"[Prosecutor]: That is a backdoor effort at the same thing. Judge. I object. It calls for hearsay.
"[Defense counsel]: Your Honor, in response to that I would say again his liberty is at stake. He has every ...