The PEOPLE of the State of Colorado, Petitioner, v. Anthony J. QUINTANA, Jr., Respondent.
No. 93SC428.
Supreme Court of Colorado, En Banc.
Oct. 17, 1994.
Gerash, Robinson & Miranda, P.C., Scott H. Robinson, Denver, for respondent.
Chief Justice ROVIRA delivered the Opinion of the Court.
During and immediately after the murder of Lawrence Martinez, Anthony Joseph Quin
We granted certiorari to consider whether the court of appeals erred in (1) restricting its analysis of the admissibility of the statements; (2) holding that the probative value of the statements was substantially outweighed by the danger of unfair prejudice; and (3) holding that the admission of the statements was not harmless error. Because we conclude that the statements were properly admitted at trial, we reverse and remand with directions.
I
On May 29, 1989, defendant and Joe Allen Eubanks (Eubanks) arrived in La Junta, Colorado. That same day, they wеnt to the home of Eddie Duran and attempted to purchase a shotgun so they could “snuff” someone. Duran refused to sell them a shotgun. Eubanks and defendant returned the next day, imploring Duran to sell them a shotgun so they could kill someone. Duran again refused. Defendant became upset and, as he was leaving Duran‘s property, proclaimed that he would get a knife, take someone out to Higbee1 and “shank” the person there.2
That evening, defendant and Eubanks met Russel Eloyd (Eloyd). The three men had just begun to look for a ride when Lawrence Martinez (Martinez) drove up and agreed to drive the group south of town to some property owned by Eubanks’ grandfather. Defendant and Eubanks directed Martinez to drive out of La Junta towards Higbee. After they drove some distance, Eubanks requested that Martinez pull over so he could go to the bathroom. Martinez complied and Eubanks and Eloyd got out of the Jeep.
Once out of the vehicle, Eloyd heard Martinez scream. As he turned around, he saw Martinez holding his neck and blood seeping through his fingers. Martinez jumped out of the Jeep and attempted to flee, but defendant followed and continued to stab him. Martinez fell to his knees and began to pray and beg for his life. In response, defendant kicked Martinez in the face and defendant and Eubanks proceeded to beat Martinez while repeatedly yelling “Die, bitch.” Eubanks then slammed a large rock into Martinez’ head and encouraged defendant to do the same. Defendant complied and pummeled Martinez in the head with a rock. Eloyd testified that, while laughing, Eubanks and defendant threw three or four rocks apiece at Martinez’ head. At Eubanks’ command, Eloyd took money out of Martinez’ wallet and defendant snatched the money and put it in his pocket. Martinez was then put in the Jeep and defendant told Eloyd to drive.
As they were driving, Eloyd heard Martinez moaning and heard defendant ask for “something so I can hit him or stab him again.” Martinez, however, stopped moaning and Eubanks stated “We‘re going to dump the body off . . . so the wolves and animals [can] eat him up.” Thereafter, Eubanks ordered Eloyd to turn off the road and stop. Martinez was taken from the Jeep and thrown on the ground where Eubanks and defendant resumed bludgeoning him with rocks. At this point, Eubanks ordered Eloyd to hit Martinez with a rock. Eloyd initially refused, but Eubanks yelled “Throw it or I‘ll kill you.” Eloyd threw a rock at the victim.
Defendant pled not guilty by reason of insanity, claiming that his extensive drug use and his use of LSD on the evening of the murder made him incapable of determining right from wrong. This issue was tried to a jury and defendant was found to be sane at the time the crimes occurred.
Prior to trial, defendant moved to suppress three statements made by him—all of which expressed his desire to kill other persons not involved in the crimes at issue. The first statement occurred when Eloyd was threatened by Eubanks if he did not join the attack. When this threat occurred, defendant interceded, stating, “Don‘t worry about it. He‘ll kill Troy Ketchum.” Defendant then told Eloyd to kill Ketchum.4 The second and third statements occurred as the three men were returning to La Junta. In the second statement, defendant said he wanted to go kill his former girlfriend “because she had his baby, and she wаs a dike, and he didn‘t want his baby to grow up around her.” In the last statement, defendant said “Let‘s go get some guns, and we‘ll go kill Mr.--the Wileys for some guns in Las Animas.”
The prosecution argued that each of these statements was admissible under
At trial, Eloyd testified about the three statements. Before and after his testimony, the trial court instructed the jury that they were admitted “for the purpose of showing intent or absence of mistake or accident” and not for any other purpose. The jury found defendant guilty of first degree murder, conspiracy, second degree kidnapping and two counts of crime of violence.6
On appeal, defendant challenged portions of his sanity trial as well as the admission of the three statements. The court of appeals affirmed the judgment of sanity but, concluding that the statements were not properly admitted under
II
The People first argue that the court of appeals erred in restricting its analysis of the admissibility of the statements under
At trial, the prosecutor argued that the statements were admissible under
In finding that the trial court erred in admitting the statements, the court of appeals focused on one of the prosecution‘s justifications for admitting the statements—intent to eliminate witnesses—and concluded the prosecution had not articulated а precise evidential hypothesis for admitting the evidence under
The Colorado Rules of Evidence strongly favor the admission of material evidence, People v. Czemerynski, 786 P.2d 1100, 1108 (Colo.1990), and a trial court has substantial discretion in deciding questions concerning the admissibility of evidence. E.g., People v. Ibarra, 849 P.2d 33, 38 (Colo.1993). Therefore, absent an abuse of discretion the evidentiary rulings оf a trial court will be affirmed. Id.; People v. Lowe, 660 P.2d 1261, 1264 (Colo.1983). Further, on appeal a party may defend the judgment of the trial court on any ground supported by the record, regardless of whether that ground was relied upon or even contemplated by the trial court. Dandridge v. Williams, 397 U.S. 471, 475 n. 6 (1970); Evans v. Romer, 854 P.2d 1270, 1275 n. 7 (Colo.), cert. denied, 114 S.Ct. 419, 126 L.Ed.2d 365 (1993). Such grounds include the express rationale of the trial court.
Here, the trial court admitted the statements to show intent to commit the crime charged and absence of mistake or accident, and on appeal, the prosecution argued the statements were properly admitted to show intent to commit the crime charged. Thus, at the very least, the court of appeals should have considered whether the record supported the admission of the statements for the purpose of proving intent to commit the crime charged. Indeed, it is incumbent upon the reviewing court to investigatе potential theories of admissibility that are ei8ther argued on appeal or that were relied upon by the trial court in admitting the evidence in question. Instead, the court of appeals ignored the conclusion of the trial court as well as the arguments presented on appeal and restricted its review to the intent to eliminate witnesses theory. Such a review appears fruitless as the intent to eliminate witnesses theory was neither relied upon by the trial court nor argued by the People on appeal.
III
Because review of the trial court‘s order was too narrow, we now consider whether the statements were properly admitted at trial. Defendant argues that the statements were improperly introduced to show defendant‘s bad character, and thus, should be excluded as “other act” evidence under
It is true that evidence of other crimes, wrongs or acts may not be introduced for the purpose of showing that a person acted in conformity with his bad character.
“Other act” evidence, however, genеrally occurs at different times and under different circumstances from the charged offense. United States v. Aleman, 592 F.2d 881, 885 (5th Cir.1979); cf. United States v. Williford, 764 F.2d 1493, 1498 (11th Cir.1985) (“Evidence of an uncharged offense arising from the same series of transactions as that charged is not an extrinsic offense within Rule 404(b).“); United States v. Weeks, 716 F.2d 830, 832 (11th Cir.1983) (other act evidence does not fall within the proscription of Rule 404(b) if the evidence is inextricably intertwined with the evidence regarding the charged offense). Indeed, “other” is defined as “different or distinct from that or those referred to or implied; different in nature or kind.” Webster‘s New World Dictionary 1007 (2d College ed.1974). Further, “[t]he policies underlying the rule [404(b)] are simply inapplicable when some offenses committed in a single criminal episode become ‘other acts’ because the defendant is indicted for less than all of his actions.” Aleman, 592 F.2d at 885.
The evidence sought to be admitted in Spoto is typical of “other act” evidence. In that case, Spoto was charged with first degree murder, conspiracy to commit first degree murder and crime of violence arising out of the death of the victim due to a gunshot wound inflicted by Spoto. At trial, in order to rebut the evidence of self-defense, the prosecutor sought to introduce evidence that Spoto had brandished a pistol a few weeks earlier. People v. Spoto, 795 P.2d 1314 (Colo.1990). Such evidence is properly designated “other act” evidence as it involves a separate and distinct episode wholly independent from the offense charged.10 See also People v. Czemerynski, 786 P.2d 1100, 1108-09 (Colo.1990) (trial court did not abuse discretion in admitting into evidence testimony regarding past phone calls made by the defendant as the prior calls concerned con
Here, the three statements occurred either during or immediately subsequent to the murder of Martinez. Thus, unlike the situation in Spoto, no evidence was introduced regarding an “other” act or wrong independent from the charged offense. The statements, rather, occurred during a single criminal episode starting when defendant, Eubanks and Eloyd entered Martinez’ Jeep and ending the following day when defendant was arrested. Thus, we do not believe the three statements properly fall within the scope of
In sum, we conclude that the parties and both lower courts incorrectly designated the three statements as “other act” evidence under
IV
The People alternatively argue that the statements were properly admitted as res gestae evidence of the crime. This argument was first advanced before the court of appeals.11 The court implicitly conceded that the evidence was relevant res gestae evidence, stating that “even relevant res gestae evidence is subject to the weighing of its probative value against the unfair prejudice it may create.” Quintana, No. 91CA1457, slip op. at 6. Weighing the evidence, the court concluded that “any probative value which this evidence might have had in proving the defendant‘s intent to commit the crime charged is substantially outweighed by the danger of unfair prejudice.” Id. at 6-7. We disagree and conclude that the statements could have been properly admitted as res gestae evidence of the crime.
A
Evidence of other offenses or acts that is not extrinsic to the offense charged, but rather, is part of the criminal episode or transaction with which the defendant is charged, is admissible to provide the fact-finder with a full and complete understanding of the events surrounding the crime and the context in which the charged crime occurred. See, e.g., United States v. Daly, 974 F.2d 1215, 1217 (9th Cir.1992); Czemerynski, 786 P.2d at 1109; People v. Litsey, 192 Colo. 19, 23, 555 P.2d 974, 977 (1976); Collins v. State, 304 Ark. 587, 804 S.W.2d 680, 682 (1991). Such evidence is gеnerally “linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.” United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.1985). This type of evidence is considered part of the res gestae of the offense and it is not subject to the general rule that excludes evidence of prior criminality. Czemerynski, 786 P.2d at 1109; see also Callis v. People, 692 P.2d 1045, 1051 n. 9 (Colo.1984). Res gestae evidence includes the circumstances, facts and declarations which arise from the main event and serve to illustrate its character. Woertman v. People, 804 P.2d 188, 190 n. 3 (Colo.1991). It also includes evidence that is closely related in both time and nature to the charged offense. See United States v. McDaniel, 574 F.2d 1224, 1227 (5th Cir.1978), cert. denied, 441 U.S. 952, 99 S.Ct. 2181, 60 L.Ed.2d 1057 (1979).12
Here, the first statement was made during the murder and after Eloyd was made
We conclude that the statements were sufficiently connected to the murder of Martinez to be considered part of the res gestae of that offense.
B
Res Gestae evidence is admissible only if it is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice. Czemerynski, 786 P.2d at 1109.
Here, defendant argued at trial that he was incapable of forming the requisite intent to commit the crime charged due to his ingestion of LSD prior to the murder. The trial court found the statements were logically relevant to prove intent to commit the charged crime. In light of the defense raised at trial, the issue of whether defendant could form the requisite intent to commit murder was clearly relevant, and thus, we conclude that the trial court did not abuse its discretion in finding the statements relevant.
Relevant evidence, nonetheless, may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.”
Here, the statements are probative of intent to commit the crime charged, thus the only issue is whether the probative value was substantially outweighed by the danger of unfair prejudice. Evidence that allows a jury to reach a decision based on an improper basis creates an unfair prejudice. District Court, 869 P.2d at 1286.
In this case, the trial court gave the jury a limiting instruction both before and after the statements were introduced13 and none of the statements were given undue emphasis. Moreover, no other references were made to the statements and no evidence was introduced that defendant killed or attempted to kill the other parties. Finally, overwhelming evidence of defendant‘s guilt was presented at trial including Eloyd‘s graphic and detailed account of Martinez’ murder. Thus, taken in context, these state
C
The prosecution offered the statements as “other act” evidence under
The trial court‘s decision to admit the evidence was correct although an incorrect reason was given for that decision. People v. Mathes, 703 P.2d 608, 610 (Colo.App.1985), cert. denied, (July 1, 1985). Admissible evidence does not become inadmissible because a trial court relied on an inappropriate rule of evidence. People v. Jenkins, 768 P.2d 727, 730 (Colo.App.1988), cert. denied, (Feb. 6, 1989). A defendant‘s conviction will not be reversed if a trial court reaches the correct result although by an incorrect analysis. People v. Baca, 193 Colo. 9, 15, 562 P.2d 411, 415 (1977).
A defendant cannot take advantage of an error in a trial court‘s instruction which results in a benefit to him. People v. Somerville, 703 P.2d 615, 618 (Colo.App.1985); People v. Bossert, 722 P.2d 998, 1009 n. 20 (Colo.1986). Had the trial court admitted the evidence as res gestae, under the proper evidentiary rule, under these facts the jury could have considered the statements for any purpose rather than only to show defendant‘s intent and lack of mistake or accident. The defendant cannot be рrejudiced by a trial court‘s instruction which benefitted him.
Although the trial court incorrectly admitted the evidence under
V
In conclusion, we hold that the three statements were legally admissible at trial as res gestae evidence and not, as the trial court ruled, as “other act” evidence under
Accordingly, the decision of the court of appeals is reversed and the case is remanded with directions to reinstate the judgment of convictions.15
KIRSHBAUM and SCOTT, JJ., join in the concurrence.
Justice ERICKSON specially concurring in the result only:
In my view a number of errors occurred in the аdmission of evidence during defendant‘s trial. However, the errors which occurred in this case, as I view them, were harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).16 In People v. Quintana, No. 91CA1457, slip. op. (Colo.App. May 13, 1993) (not selected for publication) the court of appeals held that the trial court committed reversible error in admitting the statements of Anthony Joseph Quintana (defendant) under
The majority, in reversing the court of appeals, holds that defendant‘s statements were admissible. I do not agree that a proper foundation was laid in the trial court for the admission of the statements or that the statements were properly admitted as evidence to show defendant‘s intent to eliminate witnesses. I concur in the result because the evidence of defendant‘s guilt was overwhelming and the admission of defendant‘s statements could not have changed the jury‘s verdict.
I
On May 29, 1989, Anthony Martinez (victim) drove defendant and two companions, Allen Eubanks (Eubanks) and Russel Eloyd (Eloyd), to a rural area outside of La Junta. While there, defendant and Eubanks stabbed, beat, and battered the victim with rocks. They then hauled the unconscious victim to a remote location, again assaulted him, and left him to die.
On June 19, 1989, defendant was charged with first-degree murder,17 felony murder during kidnapping,18 conspiracy to commit murder,19 and crime of violence20 (collectively “crimes“). Defendant pleaded not guilty and not guilty by reason of insanity at the time of the alleged commission of the offense. Defendant claimed his extensive drug use and his use of LSD on the еvening of the murder made him incapable of determining right from wrong. A jury found defendant to be sane at the time that the crimes were committed.
Over objection, in the guilt phase of the trial the prosecution introduced testimony from Eloyd that defendant had made three statements (collectively “statements“) about committing future crimes. Defendant claims that the admission of this testimony constitutes reversible error. I agree that error occurred, but that reversal and a new trial is not required.
The first statement occurred after Eloyd refused to hit the victim with rocks. Eubanks stated, “throw it or we‘ll kill you.” After Eloyd threw the rock defendant stated, “Don‘t worry about it, he‘ll kill Troy Ket
Eloyd also testified that moments later defendant stated that he wanted to kill his former girlfriend “because she had his baby and she was a dike, and he didn‘t want his baby to grow up around her.”
As the three drove back to town, Eloyd testified thаt defendant said, “Let‘s go get some guns, and we‘ll go kill Mr.--the Wileys for some guns in Las Animas.”
The thrust of defendant‘s statements reflected his intent to commit future murders and did not relate to past acts or crimes.
II
The majority finds that “the court of appeals erred in restricting its analysis of the admissibility of the statements under
A
Unless otherwise provided by constitution, statute or rule, all relevant evidence is admissible.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
For prior acts evidence to be admissible: (1) it must relate to a material fact, (2) it must be logically relevant (make the existence of a material fact more or less probable than it would be without the evidence), (3) its logical relevance must be independent of the prohibited inference that defendant has a bad character, and (4) its probative value must substantially outweigh the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314, 1318 (Colo.1990). Here, the prosecution was required to establish each of these factors by a preponderance of the evidence. People v. Garner, 806 P.2d 366, 370 (Colo.1991). In addition, nearly all of the statements in issue relate to future rather than past acts, which do not provide a basis for admission under
Defendant asserts that because he had ingested LSD prior to contact with the victim he was incapable of forming the requisite intent to commit the crime charged. The prosecution claimed that the statements about committing future crimes were relevant to prove plan or intent to eliminate witnesses. The statements, however, were never offered to show culpable mental state for the crime charged.
Under the Spoto standard, the statements at issue must be logically relevant independent of the inference prohibited by
The prosecution did not offer the statements to establish defendant‘s intent to commit the crimes charged, but only to show defendant‘s intent to eliminate witnesses. The statements only proved defendant‘s bad character, and had no other probative value. Prejudice to the accused from the admission of the statements outweighed their probative value. Consequently, the prosecution failed to meet its burden of proof. The court of appeals did not err in restricting its inquiry to whether, under
B
Relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.”
Relevant evidence is evidence having a tendency to make the existence of a fact in issue more probаble or less probable than it would be without the evidence.
Although defendant‘s statements occurred contemporaneously with and shortly after the victim was murdered, they involved threats of future assaults against persons other than the victim. The statements were thus not probative of whether or not defendant committed the crime charged, but only relevant to prove that defendant could form the intent to commit murder.
In Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959), this court recognized the potential prejudice resulting from admitting prior bad act evidence:
Bearing in mind that evidence of similar acts has inhering in it damning innuendo likely to beget prejudice in the minds of jurors, and that such evidence tends to inject сollateral issues into a criminal case which are not unlikely to confuse and lead astray the jury, it becomes exigent that courts observe the fine balance in regard to such evidence that must exist between the necessity of proof on the part of the prosecutor and the danger of unfair prejudice to the defendant.
Id. at 284, 344 P.2d at 458. Evidence of defendant‘s bad character is excluded because “he may be found guilty on the present charge, not because he is believed to be guilty, but because his bad character may be thought by the jury to deserve punishment or to deprive an erroneous verdict of its moral injustice.” People v. Lucero, 200 Colo. 335, 343, 615 P.2d 660, 665 (1980).
It is clear that defendant‘s statements about his intent to commit other murders could have been used by the jury to infer bad character and to convince the jury that defendant committed the murder. The potential for prejudice was great.
C
After determining that defendant‘s statements were not “other act” evidence under
Evidence of other offenses or acts that is part of the criminal episode or transaction with which defendant is charged is admissible to provide the fact-finder with a complete understanding of the events surrounding the crime and the context in which the charged crime occurred. People v. Czemerynski, 786 P.2d 1100, 1109 (Colo.1990). Res gestae evidence includes acts and words that are part of the transaction and allow for a proper understanding of the main fact. Woertman v. People, 804 P.2d 188, 190 n. 3 (Colo.1991). Res gestae evidence is not subject to the general rule that excludes evidence of prior criminality. Czemerynski, 786 P.2d at 1109.
Although defendant‘s statements were made contemporaneously with and shortly after the crime charged, their temporal relation to the crime is insufficient to categorize them as res gestae evidence. The statements fail to provide an understanding of the context in which the crime occurred or set a background for the events leading up to the victim‘s murder. The statements related to defendant‘s plans to commit future crimes against persons other than the victim. Defendant‘s statements cannot properly be characterized as res gestae evidence and should not have been admitted under
D
In determining whether error in a criminal trial is harmless, the proper inquiry “is whether the error substantially influenced the verdict or affected the fairness of the trial proceedings.” Tevlin v. People, 715 P.2d 338, 342 (Colo.1986). An error in a criminal trial is harmless “if there is not a reasonable possibility that the error contributed to the defendant‘s conviction.” People v. Taylor, 197 Colo. 161, 164, 591 P.2d 1017, 1019 (1979).
The proper analysis, when a constitutional issue is involved, requires the reviewing court to consider whether the error was harmless beyond a reasonable doubt. Key v. People, 715 P.2d 319, 323 (Colo.1986). Harmless error exists “only when a reviewing court can say with fair assurance that, in light of the entire record, the error did not substantially influence the verdict or impair the fairness of the trial.” Lybarger v. People, 807 P.2d 570, 581 (Colo.1991).
In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) the United States Supreme Court discussed the role of a reviewing court in harmless error analysis. The Court stated that Chapman “instructs the reviewing court to consider not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081, (citing Chapman, 386 U.S. at 24, 87 S.Ct. at 828). “The inquiry, in other words, 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 the error.” Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081.
In the present case, the evidence of guilt was so overwhelming that the error was harmless beyond a reasonable doubt. Eloyd and Eubanks testified that defendant began stabbing the victim, and continued to stab him after the victim attempted to get away. The victim had eight stab wounds, one of which was to his throat. Eloyd further stated that the victim began to pray and defen
The admission of defendant‘s statements did not affect the fairness of the trial or materially contribute to defendant‘s conviction. The guilty verdict in this case was not attributable to defendant‘s three statements about his intent to commit future crimes.
Acсordingly, I concur in the result and would reverse the court of appeals and reinstate the judgments of conviction and sentences imposed by the trial court because the admission of defendant‘s statements was harmless beyond a reasonable doubt in view of the overwhelming and unrefuted evidence in the record. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
I am authorized to say that Justice KIRSHBAUM and Justice SCOTT join in this special concurrence.
Notes
Certain evidence may be admitted for a particular purpose and no other. The testimony you are about to hear from this witness is such evidence. It may be used as evidence for the purpose of showing intent or absence of mistake or accident on the part of the defendant or for purposes of assessing credibility, and you should consider it as evidence for no other purpose.
Following the testimony the court instructed:
Ladies and gentleman of thе jury, the testimony just presented through Mr. Eloyd concerning Mr. Ketchem, [sic] Ms. Nieto, and the Wileys of Las Animas is the testimony subject to the Court‘s earlier cautionary instruction.
The jury instruction provided:
Instruction 24
The court admitted certain evidence for a limited purpose. At the time you were instructed not to consider it for any purpose other than the limited purpose for which it was admitted. You are again instructed that you cannot consider evidence admitted for a limited purpose except for the limited purpose for which it was admitted.
If an error is of constitutional dimension, the error will require reversal unless it is harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24. Errors in criminal trials that do not involve constitutional rights are harmless when the error does not “substantially influence the verdict or impair the fairness of the trial.” Lybarger v. People, 807 P.2d 570, 581 (Colo.1991).
I have assumed for the purpose of this opinion that the errors in admitting the defendant‘s statements would require reversal if the error was not harmless beyond a reasonable doubt.