April 23, 2015
The People of the State of Colorado, Plaintiff-Appellee,
Willie Clark, Defendant-Appellant
and County of Denver District Court No. 08CR10425, Honorable
Christina M. Habas, Judge.
H. Coffman, Attorney General, John T. Lee, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee.
and Whitson, P.C., Eric A. Samler, Denver, Colorado, for
and Vogt[*], JJ., concur.
[¶1] Defendant, Willie Clark, appeals the
judgment of conviction entered on jury verdicts finding him
guilty of one count of murder (extreme indifference), one
count of murder (after deliberation), sixteen counts of
attempted first degree murder, two counts of second degree
assault, sixteen counts of violent crime, and one count of
possession of a weapon by a previous offender. He also
appeals the trial court's denial of his motion for new
trial. We affirm in part, reverse in part, and remand with
[¶2] Fifteen gunshots rang out through the
streets of downtown Denver in the early morning hours of New
Year's Day 2007. Those gunshots, aimed at an oversized
limousine from a white Chevrolet Tahoe, left Darrent
Williams, a member of the Denver Broncos football team, dead;
two additional people wounded; and fourteen others uninjured
[¶3] The prosecution's evidence showed
that the victims had celebrated New Year's Eve in the VIP
section of a night club in the vicinity of the Golden
Triangle area of downtown Denver. Defendant and his friend,
Daniel Harris, were also in the VIP section that evening.
Shortly before the clock struck midnight, someone opened a
bottle of champagne and began spraying it throughout the VIP
section. After being sprayed, defendant and Harris started a
verbal altercation with the victims, and Harris began
shouting " Eastside" and " Tre Tre
Crips." Defendant and Harris were then removed from the
[¶4] Approximately two hours later, the club
closed and the partygoers streamed into the street. There,
some members of the victims' group engaged in another,
largely verbal, altercation with several people, including
defendant. During that altercation, someone continued to yell
" Eastside" and " Tre Tre Crips." Some of
the evidence presented suggested that Harris was the person
doing the yelling. Eventually, the victims departed in a
[¶5] Harris testified for the prosecution at
defendant's trial after having secured immunity from
prosecution in this case and several other cases. According
to Harris, defendant was the driver of the Tahoe, and he
followed the victims' limousine after it left the
nightclub. Harris stated that he was riding in the rear
passenger seat as the Tahoe overtook the victims'
limousine, and he saw defendant lean across the front console
and fire shots from the passenger side window into the side
of the limousine. Harris testified that only one gun was
used, but the evidence established that, of the shots that
hit the limousine, some had been fired from a .40 caliber
handgun, and others had come from a .45 caliber weapon.
[¶6] Two security guards at the nightclub
testified to their observations of a green SUV that evening.
One saw an individual, perhaps matching Harris's
description, get into the green SUV.
[¶7] At trial, a person who lived at the
Parkway Condominiums in the Golden Triangle area testified
that he was on a deck outside his eleventh-floor apartment at
around 2:15 a.m. on New Year's Day when he heard between
eight and ten " pops." Shortly thereafter, he saw a
green or brown SUV driving at a high rate of speed traveling
on the boulevard next to his apartment complex.
[¶8] The prosecution's theory at trial
centered on the assertion that defendant was a member of the
Tre Tre Crips gang and, on the evening of the incident, felt
that he, his gang, or a fellow member of his gang had been
disrespected by the victims. Because of his allegiance to the
gang, the theory posited, defendant felt compelled to commit
[¶9] The prosecution presented evidence that
defendant confessed his involvement in the shooting to
Veronica Garcia, Vernone Edwards, Julian Vigil, and J.G. (a
cellmate, while defendant was imprisoned pretrial). The
prosecution also introduced a letter written by defendant
appearing to acknowledge his role as the shooter.
[¶10] Defendant posited that Harris had
carried out the shooting from the green SUV. He argued that
Harris had provided false information to secure a favorable
plea deal from the prosecution.
[¶11] A jury convicted defendant on all of
the counts charged.
[¶12] Defendant contends the trial court
erred in admitting or rejecting certain evidence.
Specifically, defendant argues that the court: (1) erred by
admitting evidence and testimony regarding his gang
membership, as well as expert testimony about gang origin,
structure, psychology, hierarchy, and presence in Denver; (2)
erred by limiting his cross-examination of several witnesses;
(3) erred by admitting Harris's prior consistent
statement; and (4) erred by refusing to admit grand jury
testimony of two witnesses who refused to testify at trial.
We address and reject each contention in turn.
Evidence of Gang Affiliation
Preservation and Standard of Review
[¶13] The parties agree that defendant
adequately preserved his arguments.
[¶14] " A trial court has broad
discretion in ruling on the admissibility of evidence."
People v. Beilke, 232 P.3d 146, 149 (Colo.App.
2009). Thus, we review a trial court's evidentiary
rulings for an abuse of discretion. Dunlap v.
People, 173 P.3d 1054, 1097 (Colo. 2007). A trial court
abuses its discretion when its evidentiary ruling " was
manifestly arbitrary, unreasonable, or unfair."
Yusem v. People, 210 P.3d 458, 463 (Colo. 2009).
[¶15] " Evidence about gang culture is
admissible if relevant to explain a circumstance of the
crime, . . . to show a motive for the crime itself, or to
understand a witness's change in statement or reluctance
to testify." People v. James, 117 P.3d 91, 94
(Colo.App. 2004); see also People v.
Webster, 987 P.2d 836, 840 (Colo.App. 1998) ("
Evidence of the defendant's affiliation with a gang may
be admitted when it is relevant to proving a motive for the
crime." ); People v. Moya, 899 P.2d 212, 218
(Colo.App. 1994) (" [B]ecause [the] defendant's gang
affiliation could have shown a motive to commit the crime, we
conclude that such evidence was properly admitted." );
People v. Mendoza, 876 P.2d 98, 102 (Colo.App. 1994)
(" Proof of intent to kill was a necessary part of the
prosecution's case, and the evidence of the
defendant's gang affiliation, which tended to prove the
existence of a motive for killing the victim, was relevant
for purposes of CRE 401." ).
[¶16] " Still, because 'gangs are
regarded with considerable disfavor by our society,'
gang-related evidence must be 'admitted with
care.'" People v. Trujillo, 2014 COA 72,
¶ 72, 338 P.3d 1039 (quoting People v. Morales,
2012 IL App. (1st) 101911, 966 N.E.2d 481, 492, 359 Ill.Dec.
160 (Ill.App.Ct. 2012)). " Hence, 'courts must be
vigilant in guarding against the improper use of gang
affiliation evidence as a backdoor means of introducing
character evidence by associating the defendant with a gang
and describing the gang's bad acts.'"
Id. (quoting Gutierrez v. State, 423 Md.
476, 32 A.3d 2, 13 (Md. 2011)).
[¶17] Evidence is relevant if it has any
tendency to make the existence of a fact of consequence more
or less probable. CRE 401. In criminal cases, evidence is
relevant if the evidence makes it more or less probable that
a criminal act occurred, the defendant was the perpetrator,
or the defendant acted with the necessary criminal intent.
People v. Cordova, 293 P.3d 114, 118 (Colo.App.
2011). All relevant evidence is admissible subject to certain
constitutional provisions, statutes, and rules of evidence.
[¶18] " [R]elevant evidence can be
excluded if . . . its probative value is substantially
outweighed by the danger of unfair prejudice."
Trujillo, ¶ 56 (citing CRE 403). Evidence is
unfairly prejudicial if it has an " 'undue tendency
to suggest a decision on an improper basis . . . such as
sympathy, hatred, contempt, retribution, or
horror.'" James, 117 P.3d at 93-94 (quoting
Masters v. People, 58 P.3d 979, 1001 (Colo. 2002)).
" In reviewing the trial court's determination, we
assume the maximum probative value that a reasonable fact
finder might give the evidence and the minimum unfair
prejudice to be reasonably expected." Id. at
[¶19] Relevant evidence may also be excluded
under CRE 404(b) if " it is used to prove the character
of a person in order to show that he or she acted in
conformity with that character on a particular
occasion." Trujillo, ¶ 56 (citing
Yusem, 210 P.3d at 463).
[¶20] The distinction between admissible
evidence of motive and inadmissible character evidence "
'is often subtle.'" Masters, 58 P.3d at
998 (quoting People v. Hoffman, 225 Mich.App. 103,
570 N.W.2d 146, 148 (Mich. Ct.App. 1997)). In certain
situations, evidence that would be otherwise labeled
inadmissible character evidence " 'establishes more
than character or propensity'" because it "
'tends to show why the defendant perpetrated a seemingly
random and inexplicable attack.'" Id. at
999 (quoting Hoffman, 570 N.W.2d at 149). Subject to
CRE 403, this evidence is admissible because, without it,
" 'the jurors may have found it difficult to believe
. . . that [the] defendant committed the depraved and
otherwise inexplicable actions.'" Id.
(quoting Hoffman, 570 N.W.2d at 149-50).
[¶21] The trial court denied defendant's
motion in limine seeking to exclude evidence of gang
affiliation, finding that the case " is permeated with
gang references," and that " to excise any
information about gang membership or the organization of
[¶22] . . . is not only impossible, but
it's completely unsupportable," because the case and
gang evidence involved " a huge deal about the respect
issues [and] saving-face issues."
[¶23] Defendant contends that none of the
evidence regarding his affiliation with the Tre Tre Crips
gang should have been admitted at trial. He argues that the
shooting in this case was the result of a " bar
fight" that had broken out when an individual became
" upset about being sprayed with champagne."
Therefore, he asserts, evidence of his affiliation with the
gang was not relevant and was extremely prejudicial. We
reject defendant's contention.
[¶24] Two witnesses testified that
defendant's gang affiliation had motivated him to
participate in the shooting. J.G. testified that defendant
had identified himself as a member of the Tre Tre Crips gang
and had told him that the shooting occurred because the
victims " weren't respecting Crip" and were
" disrespecting the Eastsiders." Later, Julian
Vigil testified defendant had told him that he had "
dumped on" the victims because they were "
disrespecting Denver Crips."
[¶25] Given these facts, defendant's
affiliation with the Tre Tre Crips gang " could have
shown a motive to commit the crime[s]" charged requiring
specific intent. See Mendoza, 876 P.2d at
103. Therefore, evidence of that affiliation was admissible
under CRE 401 and CRE 403. Id.
[¶26] Defendant also attacks the expert
testimony of a police officer who testified concerning the
origin of the Crips gang, its relationship with other gangs,
the origin of the " sub-gang" to which defendant
belonged, the hierarchy of the gang, and what it means to be
" jumped in" as a member. He contends all of the
expert's testimony was irrelevant, prejudicial, and
constituted inadmissible evidence of bad character.
[¶27] A division of this court recently held
that the majority of a " gang expert's"
testimony was inadmissible under CRE 401, 402, and 404(b).
See Trujillo, ¶ ¶ 67-86. While we
agree that such testimony must be " admitted with
care," id. at ¶ 72 (internal quotation
marks omitted), we nevertheless conclude that the factual
circumstances present in Trujillo differ
significantly from those presented here.
[¶28] Importantly, the Trujillo
division held that an expert's testimony regarding a
gang's codes of respect, loyalty, and allegiance is
admissible to prove a defendant's motive for committing
the crime. See id. at ¶ 86.
[¶29] The expert in this case testified that
the Tre Tre Crips gang has a code of respect under which
disrespect to one member translates to disrespect to the
whole group. Thus, if one member is disrespected, the whole
group must act to rectify that insult. If a member does not
act, he or she stands to lose face because of cowardice. The
expert also testified that loyalty and allegiance are the
paramount expectations of any member of the Tre Tre Crips
gang. Because this testimony explained defendant's
potential motive for committing the crimes at issue, it was
properly admitted. See id.
[¶30] Relying on Trujillo,
defendant asserts that the expert's testimony regarding
the origin, locale, and structure of the Crips gang was
irrelevant and unfairly prejudicial. Defendant also contends
that the trial court erred by admitting photographs of his
tattoos and allowing the expert to explain their
significance. See id. at ¶ 77 (holding
expert testimony about the organizational structure and size
of the gang at issue, as well as the meaning of certain
tattoos, was not probative of defendant's motive and
therefore did not relate to a material fact).
[¶31] However, " [m]aterial facts"
may either be " 'ultimate facts'" (i.e.
evidence defendant committed the crime, evidence of the
requisite intent, or evidence of deliberation) or "
'intermediate or evidential facts, themselves probative
of ultimate facts.'" Masters, 58 P.3d at
997 (quoting People v. Rath, 44 P.3d 1033, 1039-40
[¶32] Here, the prosecution had to establish
defendant was a member of the Crips gang in order to
establish that he may have possessed the motive provided by
the code of respect. Thus, many aspects of the expert's
testimony were intermediate facts which, in conjunction with
the lay testimony offered, were probative to show that
defendant was a Crips member. See id. For example:
o Several witnesses testified that someone at the night club
was shouting " Eastside" and J.G. testified that
defendant told him the victims were " disrespecting the
Eastsiders." The expert testified that the Tre Tre Crips
were centered in the east side of Denver.
o A police officer testified that defendant had admitted to
writing a letter in which he used the phrase " death by
dishonor" when referring to " the Rican"
(Daniel Harris's nickname). The expert explained that the
Crip gang enforces a code of silence.
o Defendant had a tattoo that spelled the word "
stacc." The expert testified that the " cc"
stood for " Compton Crip" which referred to the
origins of the Crips gang in California.
o Defendant had tattoos that read " MOB," "
303," " Eastside" over stacks of money, and
" Lett" with the " e" backwards to form a
" 3." The expert explained that each of these
tattoos referred to common phrases used within the Tre Tre
Crips gang, or the geographic area in which the gang was
[¶33] Likewise, establishing motive required
the prosecution to show that the code of conduct would have
been triggered by events that transpired at the nightclub.
Before the expert testified, Veronica Garcia had testified
that defendant was a member of the Tre Tre Crips gang,
whereas Daniel Harris was a member of the Grape Street Crips
gang. The parties appear to agree that Harris was the man who
was sprayed with champagne at the nightclub. Therefore, the
expert's testimony regarding the structure of the
sub-gangs that claimed allegiance to the broader Crips
organization was material to establishing the relationship
between defendant and Harris. See Masters,
58 P.3d at 997.
[¶34] Notably, the lay witnesses and the
expert in Trujillo had testified about several
violent acts previously committed by members of the gang at
issue in that case. See ¶ ¶ 34, 47, 48,
64. Neither the lay witnesses nor the expert in this case
testified to any prior acts of the Tre Tre Crips gang or the
broader Crips organization.
[¶35] Unlike the evidence in
Trujillo, the evidence in this case " was not
offered to prove that the defendant was more likely to kill
because he was a gang member; rather, it was offered to show
that, because of his membership in a . . . gang, defendant
was more likely to" have the motive to commit the crimes
charged against victims who had disrespected the gang.
Mendoza, 876 P.2d at 103. Therefore, the evidence
was admissible, see id., because the
prosecution's evidence provided a nexus between the crime
and gang membership independent of any improper character
evidence. And while " [w]e agree with defendant that
this evidence was prejudicial," it was only prejudicial
" in the sense [that] it was legitimately damaging to
defendant's case." James, 117 P.3d at 94.
[¶36] Therefore, the trial court did not
abuse its discretion by admitting the gang evidence in
Limits on Cross-Examination
[¶37] Defendant asserts that the trial court
abused its discretion by precluding certain lines of inquiry
during his cross-examination of Daniel Harris, Vernone
Edwards, and Julian Vigil. He also contends that the trial
court's rulings violated his constitutional confrontation
[¶38] We conclude that the trial court did
not abuse its discretion; hence, we also conclude there was
no excessive limitation that violated defendant's
Preservation and Standard of Review
[¶39] The parties agree that defendant
adequately preserved his arguments with respect to these
[¶40] Again, we review a trial court's
evidentiary rulings for an abuse of discretion. People v.
Houser, 2013 COA 11, ¶ 57, 337 P.3d 1238. A trial
court abuses its discretion if its decision was manifestly
arbitrary, unreasonable, unfair, or based on an erroneous
understanding or application of the law. Id.
Cross-Examination of Daniel Harris
[¶41] Daniel Harris testified that defendant
was the shooter. During cross-examination, defense counsel
questioned Harris extensively about specific instances of his
untruthfulness, which included giving a policeman a false
name and pleading guilty to providing false identification to
a police officer.
[¶42] Harris also acknowledged that, in
1995, he had pleaded guilty to two felonies arising from an
incident in South Dakota: aggravated assault and discharge of
a firearm from a moving vehicle into an occupied structure.
The trial court also permitted defense counsel to question
Harris about his interactions with police during his arrest
for those crimes. Defense counsel then cross-examined Harris
about the timing of his arrest, his flight prior to arrest,
and the false statements he had made to police about his
involvement in the crime and the gun that had been used.
[¶43] Later, defense counsel asked Harris
about meeting with investigators and the deputy district
attorney concerning his testimony in this case. Counsel
inquired whether they had asked him about the South Dakota
incident. He confirmed that they had. Defense counsel then
asked whether the investigators had the " reports that
said the house had holes in it." The trial court
sustained an objection by the prosecutor and told defense
counsel he could make an offer of proof later.
[¶44] Outside the presence of the jury,
defense counsel proffered that, when Harris had been asked
about the incident in South Dakota, he claimed to have shot
in the air, not at the residence. Defense counsel argued that
the presence of holes in the house in combination with
Harris's statements to police were probative of his
truthfulness or untruthfulness.
[¶45] The trial court stated that it had
sustained the objection under CRE 403, explaining that it had
considered the cross-examination in its entirety and
determined that defendant had " obtained as much
probative value out of that particular instan[ce] as [he was]
ever . . . going to." The court reasoned that the danger
of unfair prejudice and confusion of the issues outweighed
the probative value of any additional testimony on the topic.
[¶46] " Under CRE 608(b), a witness may
be cross-examined about specific instances of conduct that
are probative of the witness's character for truthfulness
or untruthfulness." People v. Knight, 167 P.3d
147, 153 (Colo.App. 2006). Providing false information to a
police officer is probative of a witness's truthfulness
under CRE 608(b). People v. Segovia, 196 P.3d 1126,
1131 (Colo. 2008) (citing People v. Garcia, 17 P.3d
820 (Colo.App. 2000)).
[¶47] Nonetheless, " [a] trial court
has discretion . . . to exclude CRE 608(b) evidence on CRE
403 grounds." People v. Wilson, 2014 COA 114,
¶ 34 (collecting cases). Under CRE 403, " [a] trial
court should 'exclude evidence that has little bearing on
credibility, places undue emphasis on collateral matters, or
has the potential to confuse the jury.'"
Id. at ¶ 36 (quoting Knight, 167 P.3d
at 153); see also People v. Diaz, 644 P.2d
71, 72 (Colo.App. 1981) (" [W]hen impeaching a witness
the relevancy of the impeaching evidence must be clear, must
not raise collateral issues, and must be directed only at the
witness' credibility, and not at the witness' moral
[¶48] " A matter is considered
collateral when it has no independent significance to the
case and thus would not be independently provable regardless
of the impeachment." Banek v. Thomas, 733 P.2d
1171, 1178 n.7 (Colo. 1986).
[¶49] Here, the court's decision to
preclude further questioning of Harris about the specific
South Dakota incident in which he was allegedly dishonest was
not an abuse of discretion. The trial court had properly
permitted defense counsel to establish that Harris had been
convicted of two felonies in South Dakota. See
§ 13-90-101, C.R.S. 2014 (felony convictions of a
witness are admissible). Defense counsel also had properly
questioned Harris as to the name, nature, and date of those
offenses. People v. Huynh, 98 P.3d 907, 913
(Colo.App. 2004) (" [T]he scope of questioning . . . is
generally limited to the name, nature and date of the offense
for which the witness was convicted." (internal
quotation marks omitted)). Exercising its discretion, the
trial court additionally allowed defense counsel to question
Harris about his dishonest behavior with police when he was
arrested for those crimes. See People v.
Cooper, 950 P.2d 620, 624 (Colo.App. 1997) (The scope of
permissible inquiry regarding " the details of [the]
prior offenses is committed to the trial court's
discretion." ), rev'd on other grounds 973
P.2d 1234 (Colo. 1999).
[¶50] Thus, defense counsel had already
established that Harris had been dishonest with the police
numerous times in the past. One additional instance of
dishonesty arising in the context of preparation for his
testimony in this case carried little probative force because
the jury already had sufficient information with which to
determine Harris's credibility. See People
v. Sweeney, 78 P.3d 1133, 1137 (Colo.App. 2003) ("
[T]he jury heard sufficient information about [the witness]
to assess his credibility" despite the trial court's
ruling that precluded inquiry into two specific instances of
[¶51] Allowing inquiry into " details
that go beyond the face of the conviction may lead to
wasteful collateral disputes requiring witness testimony
about the way in which the [prior] crime was committed."
Roger Park & Tom Lininger, The New Wigmore: Treatise
on Evidence: Impeachment and Rehabilitation § 3.4
(2014). As a result, a trial court must make a pragmatic
decision whether the probative value of the specific details
is substantially outweighed by the policy considerations of
CRE 403. See Kenneth S. Broun et al., 1
McCormick on Evidence § 49 (7th ed. 2013).
[¶52] Here, the factual details underlying
the South Dakota incident were collateral matters.
See Wilson, ¶ 39. Defendant has not
established that the South Dakota incident or Harris's
dissembling concerning it in this case had significance
independent of its impeachment value. See
id. at ¶ 37. Indeed, the police reports from
South Dakota were not independently admissible. See
People v. Inman, 950 P.2d 640, 644 (Colo.App. 1997)
( " [A] specific instance of conduct . . . cannot be
proven by extrinsic evidence." ). And defendant could
not have inquired into Harris's prior conduct in South
Dakota as a part of his case-in-chief. People in Interest
of K.N., 977 P.2d 868, 877 (Colo. 1999) ("
[E]vidence was collateral, and therefore inadmissible, to the
extent that the [cross-examiner] could not have inquired into
[the] conduct as part of [its] case in chief." );
People v. Warrick, 284 P.3d 139, 143 (Colo.App.
2011) (" By its terms, CRE 803(8)(B) excludes from the
public records exception [to hearsay] any matters observed by
police officers and other law enforcement personnel."
(internal quotation marks omitted)).
[¶53] Furthermore, Harris testified that he
had pleaded guilty to the felonies that he had committed in
South Dakota and had served a six-year sentence. Thus, the
acts associated with those felony convictions were not
subject to the terms of his plea agreement with federal
prosecutors and did not affect his motive to testify against
defendant. See Wilson, ¶ 37;
Huynh, 98 P.3d at 913.
[¶54] Under these circumstances, the trial
court's decision to preclude further inquiry regarding
the South Dakota incident was not arbitrary, unreasonable, or
unfair. See Cooper, 950 P.2d at 624.
Accordingly, we conclude the trial court did not abuse its
discretion. See People v. Hoover, 165 P.3d
784, 802 (Colo.App. 2006) ( " 'Discretion is abused
only where no reasonable person would take the view adopted
by the trial court. If reasonable persons could differ as to
the propriety of the action taken . . . then it cannot be
said that the trial court abused its discretion."
(quoting State v. Heywood, 245 Kan. 615, 783 P.2d
890, 894 (Kan. 1989); alterations omitted)).
Cross-Examination of Vernone Edwards
[¶55] Vernone Edwards testified to a
conversation in which defendant took responsibility for the
shooting. He also recounted that defendant had called him
after the shooting and requested that he provide defendant a
replacement weapon for the one that defendant had used in the
shooting (which Edwards said defendant had disposed of).
Edwards also testified to a conversation with Daniel Harris
in which Harris recounted the shooting to him.
[¶56] During his cross-examination of
Edwards, defense counsel asked the witness whether he had
previously engaged in a robbery that had involved three other
prosecution witnesses. The prosecutor objected on CRE 404(b)
grounds. During a bench conference, defense counsel stated
that he was offering the testimony to show " [t]he
relationship between" the four witnesses. The trial
court allowed defense counsel to ask " one
question" on the topic. Counsel asked the witness the
question he had originally posed and Edwards responded by
saying, " Yes."
[¶57] When defense counsel attempted to ask
a follow-up question, the trial court stated that it had
instructed defense counsel to ask only one question and told
counsel to move on.
[¶58] Later, defense counsel attempted to
question Edwards about his statements to police officers
investigating defendant's case. At a bench conference,
defense counsel indicated that he was attempting to question
Edwards about " another robbery" in which he had
injured his foot. According to defense counsel, a police
officer had asked Edwards how he had injured his foot and,
after " two or three . . . deceptions," Edwards
admitted that he had injured himself by kicking a person in
the head during a robbery. The trial court permitted defense
counsel to ask two questions on that topic.
[¶59] During the same bench conference,
defense counsel also stated that Edwards had attempted to
deceive " another person that was involved in" his
drug organization. Counsel described the robbery as " an
elaborate setup" designed to allow an unidentified
person " that was in on the robbery . . . to pretend
that he wasn't."
[¶60] The trial court reasoned that this
line of questioning was " far afield . . . of anything
that's relevant" and that additional inquiry would
confuse the jury. Pursuant to CRE 403, the court precluded
defense counsel from asking any questions about the scheme.
[¶61] Under CRE 404(b), " relevant
evidence can be excluded if it is used to prove the character
of a person in order to show that he acted in conformity with
that character on a particular occasion."
Yusem, 210 P.3d at 463. However, evidence of
uncharged crimes or prior acts " is admissible if used
for purposes independent of an inference of bad
character." Id. (citing CRE 404(b)).
[¶62] In People v. Spoto, 795 P.2d
1314, 1318 (Colo. 1990), the supreme court established a
four-part test to determine the admissibility of uncharged
crimes or prior acts. Relevant here, the fourth factor
requires that " the probative value of the evidence [not
be] substantially outweighed by the . . . policy
considerations of CRE 403." People v.
Sandoval-Candelaria, 328 P.3d 193, 199 (Colo.App. 2011),
rev'd on other grounds, 321 P.3d 487, 2014 CO
[¶63] Defendant contends the trial court
abused its discretion by precluding his counsel's inquiry
into the specific circumstances of the two robberies. We
[¶64] There is no evidence in the record to
suggest that Edwards was convicted of either of the robberies
at issue. Therefore, the admissibility of evidence regarding
each robbery is subject to the requirements of CRE 404(b).
See Yusem, 210 P.3d at 463. And even if we
assume, without deciding, that the evidence regarding each
robbery satisfied the first three Spoto factors, we
conclude that the trial court did not abuse its discretion in
determining that it did not satisfy the fourth factor.
[¶65] Defense counsel offered evidence of
the first robbery to establish " [t]he relationship
between" the four witnesses. The court permitted counsel
to inquire about it, and the witness acknowledged the
relationship. Any additional evidence on the topic had
marginal probative value and the trial court did not abuse
its discretion in determining that any additional evidence
was needlessly cumulative. See People v.
Saiz, 32 P.3d 441, 446-47 (Colo. 2001) ( whether a trial
court abuses its discretion depends on the offer of proof
before the trial court and once the purpose for which the
evidence is offered has been established, any additional
evidence on the topic becomes needlessly cumulative).
[¶66] According to defense counsel's
proffer, evidence of the second robbery was offered to show
Edwards's character for untruthfulness. But before
addressing the second robbery, defense counsel had elicited
admissions from Edwards that he had led a life of deception,
had been convicted of three prior felonies, and believed
criminals would deceive police officers to get out of
trouble. Furthermore, the trial court permitted defense
counsel to question Edwards about his untruthful statements
to police regarding his role in the second robbery.
[¶67] Because this testimony " made
defendant's point clear," we conclude the trial
court's ruling disallowing evidence of the elaborate
robbery scheme " did not violate CRE 403."
People v. Underwood, 53 P.3d 765, 767 (Colo.App.
2002). As Edwards had already admitted past deceptions,
additional inquiry regarding the elaborate robbery scheme
would have, at most, provided one additional specific
instance of conduct. See People v.
Rodriguez, 209 P.3d 1151, 1161 (Colo.App. 2008)
(presentation of additional evidence would have had no
purpose other than to inflame, distract, or confuse the jury;
hence, it was excludable under CRE 403). Thus, the trial
court's determination that this line of questioning would
have been " largely cumulative" and stood to
confuse the jury was reasonable. Id.
[¶68] Accordingly, we conclude the trial
court did not abuse its discretion in precluding additional
questioning regarding the circumstances surrounding the
Limits on Cross-Examination of Julian Vigil
[¶69] Vigil testified that, on the morning
following the shooting, defendant confessed to the shooting
and inquired of Vigil how to contact a criminal defense
attorney with whom Vigil was acquainted. Vigil testified that
when he drove defendant to the lawyer's home, defendant
explained that the victims' group had " disrespected
Denver Crips," and that he was in the white Tahoe when
the shooting occurred.
[¶70] Defense counsel questioned Vigil about
a prior felony conviction for theft by deception. In
response, Vigil admitted that he had pleaded guilty to theft
because he had purchased a vehicle using his
grandmother's name without her permission.
[¶71] Counsel then asked the witness whether
he had tried to do the same thing a second time. Vigil
replied by saying, " No." Counsel persisted and
asked whether " [i]t was a 2002 Tahoe in March of
2005." Again, Vigil responded by saying, "
No." Counsel then asked whether Vigil had taken "
the finance manager to [his] grandmother's nursing
home." The prosecutor objected under CRE 403 and the
trial court sustained the objection.
[¶72] Later, outside the presence of the
jury, defense counsel argued that he should have been
permitted to ask Vigil about the second, uncharged incident,
because it was probative of his character for truthfulness or
untruthfulness. The trial court ruled that the probative
value of the evidence was substantially outweighed by the
danger of unfair prejudice.
[¶73] " [W]hile the character of a
witness for truth and veracity may be shown, impeachment may
not be accomplished by attacking the general character of the
witness." People v. Taylor, 190 Colo. 210, 214,
545 P.2d 703, 706 (1976). Thus, a trial court " must . .
. exercise its sound discretion to preclude inquiries that .
. . have little effect on the witness' credibility but
would substantially impugn his moral character."
Id. at 212-13, 545 P.2d at 705. Accordingly, a trial
court should not permit broad inquiry into the details of
prior acts where such inquiry has little probative force, it
may direct the jury's attention away from the case under
consideration, and it constitutes a direct attack on the
general character of the witness. People v. Cole,
654 P.2d 830, 834 (Colo. 1982).
[¶74] Defendant asserts that the trial court
abused its discretion by limiting defense counsel's
inquiry into the details surrounding Vigil's uncharged
act. We disagree.
[¶75] The trial court properly permitted
defense counsel to question Vigil regarding the theft offense
for which he was convicted. See § 13-90-101.
Exercising its discretion, the trial court also appropriately
allowed counsel to question the witness about the second,
uncharged act of theft. See CRE 608(b); see
also Knight, 167 P.3d at 153 ( uncharged acts
involving affirmative falsehoods are probative of
witness's character for untruthfulness).
[¶76] When Vigil denied that he had
committed the uncharged act, counsel began to question him
about the specific factual details surrounding the prior act.
While the trial court gave counsel some leeway to do so, it
determined that counsel's question regarding the nursing
home was an impermissible attack on Vigil's general
[¶77] The trial court " has . . .
discretion to control the extent to which" impeachment
" may go." Taylor, 190 Colo. at 213, 545
P.2d at 706 (citing Charles McCormick, Evidence
§ 40 (2d ed. 1972)). In this case, the trial court
explained that the witness taking a car purchase contract to
his grandmother in a nursing home, if true, was "
absolutely deplorable . . . and was so prejudicial . . . [and
its] probative value . . . so minimal" that exclusion
was warranted under CRE 403. Thus, the court appears to have
reasonably determined that defense counsel's question
regarding Vigil's visit to the nursing home was "
aimed not merely at impeaching [his] credibility . . . but at
maligning his character and . . . conduct generally."
Id. at 214, 545 P.2d at 706. We cannot say that the
trial court's assessment or the action it took was an
abuse of discretion. See id.; see also
Cole, 654 P.2d at 834.
Excessive Limits on Cross-Examination
[¶78] In light of our rejection of
defendant's assertion that the trial court abused its
discretion in limiting the cross-examination noted above, we
also conclude that the trial court's rulings did not
result in a violation of defendant's constitutional
rights to confront the witnesses against him.
Invocation of the Fifth Amendment
[¶79] Defendant asserts that the trial court
erred in its handling of two witnesses who refused to answer
questions based on the Fifth Amendment's privilege
against self-incrimination. We disagree.
[¶80] " There is tension between the
rights of a defendant and the rights of a witness."
People v. Smith, 275 P.3d 715, 720 (Colo.App. 2011).
On the one hand, a person has a Fifth Amendment right to
refuse to give statements or answer questions that "
'might incriminate that person.'" Id.
(quoting People v. Blackwell, 251 P.3d 468, 474
(Colo.App. 2010)). On the other hand, " [a]
defendant's right to compel the attendance of witnesses
and to offer testimony at trial is 'a fundamental element
of due process of law.'" People v.
Chastain, 733 P.2d 1206, 1212 (Colo. 1987) (quoting
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920,
18 L.Ed.2d 1019 (1967)).
[¶81] However, the defendant's right to
present a defense is not absolute. Id. (citing
United States v. Valenzuela-Bernal, 458 U.S. 858,
867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)). " When a
defendant's rights under the Sixth Amendment collide with
a witness's Fifth Amendment rights, the defendant's
right to compulsory process must give way to the
witness's privilege not to give self-incriminating
testimony." People v. Coit, 50 P.3d 936, 938
(Colo.App. 2002) (collecting cases).
[¶82] Thus, when a witness properly invokes
his or her Fifth Amendment privilege, there is no violation
of the defendant's right to present a defense.
Smith, 275 P.3d at 720 (citing United States v.
Rivas-Macias, 537 F.3d 1271, 1278 (10th Cir. 2008));
Coit, 50 P.3d at 938).
[¶83] The privilege " is an option of
refusal, not a prohibition of inquiry." People v.
Austin, 159 Colo. 445, 450, 412 P.2d 425, 427 (1966).
Thus, " the privilege . . . may not be asserted in
advance of the questions actually propounded."
Id. " The proper procedure is to wait until a
question which tends to be incriminating has been asked and
then decline to answer." Id. Typically, an in
camera hearing is the appropriate vehicle to conduct such an
inquiry. See People v. Fletcher, 193 Colo.
314, 316, 566 P.2d 345, 347 (1977) (trial court did not err
in holding in camera hearing to determine whether witness
would testify or invoke her Fifth Amendment privilege);
People v. Dikeman, 192 Colo. 1, 2, 555 P.2d 519, 519
(1976) (it was proper for the trial court to hold an in
camera hearing to determine whether the witness " would,
in fact, invoke his privilege" ).
[¶84] However, " 'the exercise of
the privilege is not evidence to be used in the case [b]y any
party.'" Dikeman, 192 Colo. at 4, 555 P.2d
at 520 (quoting State v. Smith, 74 Wn.2d 744, 446
P.2d 571, 581 (Wash. 1968)). Thus, a party may not call a
witness to testify before the jury if it " knows the
witness will exercise [his or] her privilege against
self-incrimination." People v. Newton, 940 P.2d
1065, 1067 (Colo.App. 1996) (citing Dikeman, 192
Colo. at 4, 555 P.2d at 521).
[¶85] " The privilege against
self-incrimination . . . continues until a defendant has been
sentenced." People v. Villa, 671 P.2d 971, 973
(Colo.App. 1983) (citing Steinberger v. Dist. Court,
198 Colo. 59, 596 P.2d 755 (1979)).
[¶86] Once a witness indicates that he or
she intends to invoke the Fifth Amendment privilege, the
trial court must determine whether the witness's refusal
to testify is justified. Smith, 275 P.3d at 720.
Marvin Bragg's Motion to Quash
[¶87] Bragg, the brother of Daniel Harris,
filed a motion to quash the trial subpoena that ordered him
to appear and testify. Attached to the motion was his sworn
declaration in which he explained that he was a defendant in
a pending federal matter for which he had pleaded guilty to
conspiracy to distribute cocaine and possession with intent
to distribute that drug.
[¶88] Bragg also stated that several drug
charges would remain pending until he was sentenced for the
crimes to which he had pleaded guilty. He had not yet been
sentenced when he signed his declaration, nor had he yet been
granted any type of state or federal immunity. In addition,
Bragg stated, " If called as a witness at
[defendant's] trial, I will invoke my Fifth Amendment
privilege against self-incrimination to all questions asked
[¶89] In opposing the motion to quash,
defense counsel stated, " whether or not [Bragg] does in
fact choose to invoke . . . [i]t is up to the jurors to
decide what role, if any, he had in this." Counsel urged
the trial court to have Bragg " presented as a
witness" so the jury could " see" him "
refuse to answer questions" about " [t]he events
. . . that night and his conversations with his
brother," Daniel Harris, " so [the jury could]
determine . . . their view of his credibility."
[¶90] The trial court inquired whether
defense counsel could provide any authority to suggest that
the rule stating that " a Court should not require a
person to invoke the Fifth Amendment by way of testimony in
front of a jury" had changed. Defense counsel responded
by saying, " I'm not aware of anything that says it
[¶91] The trial court found that Bragg had
made it clear, through his declaration, that he would invoke
his privilege. Reasoning that it would be improper to force
Bragg to invoke the privilege in front of the jury, the court
granted the motion to quash.
Preservation and Standard of Review
[¶92] Defense counsel objected to the
court's decision on Bragg's motion to quash. However,
he did not assert in the trial court, as defendant now does
on appeal, that the court should have allowed questioning of
Bragg outside the presence of the jury before allowing him to
invoke his Fifth Amendment privilege. Thus, we review his
contentions under a plain error standard. See
People v. Mares, 263 P.3d 699, 702-03 (Colo.App.
[¶93] However, as the court noted in
Smith, 275 P.3d at 719, no Colorado appellate court
has specifically addressed the standard of review for
determining whether an error occurs in the situation
presented here and the case law from other jurisdictions is
conflicting. Some courts hold that review is for an abuse of
discretion while others hold that review is de novo. Because
our resolution of the issue would be the same regardless of
the standard we apply, we will review defendant's
contentions de novo. Id. at 720.
[¶94] On appeal, defendant contends that the
trial court violated his constitutional right to present a
defense by refusing to hold an in camera review to subject
Bragg to questioning before granting his motion to quash. We
do not agree.
[¶95] The record indicates that defense
counsel wanted the jury to see and hear Bragg refusing to
answer questions. Presenting Bragg to the jury was necessary,
counsel argued, so that the jury could " determine . . .
their view of his credibility." This line of proposed
inquiry is precisely the type of inquiry that is forbidden.
See Newton, 940 P.2d at 1067 ( a party may
not call a witness to testify before the jury if it knows the
witness will exercise his or her privilege against
self-incrimination); Dikeman, 192 Colo. at 4, 555
P.2d at 520 (" [T]he exercise of the privilege is not
evidence to be used in the case [b]y any party."
(internal quotation marks omitted)).
[¶96] If defense counsel had requested an in
camera hearing, the court would likely have been obligated to
hold one. See Dikeman, 192 Colo. at 2-3,
555 P.2d at 519; Austin, 159 Colo. at 449-50, 412
P.2d at 427. But counsel never requested such a hearing. Nor
did he question the grounds Bragg stated in his declaration
to justify his invocation of the privilege. Cf.
Villa, 671 P.2d at 972-73 (witness validly invoked
his Fifth Amendment privilege where he feared his testimony
could be used to enhance his sentence).
[¶97] Furthermore, counsel did not question
Bragg's intent to invoke the privilege. Instead, the
trial court's finding that Bragg had " made it clear
. . . that he intend[ed] to invoke . . . the privilege"
[¶98] Under these circumstances, we conclude
that the court did not err in granting Bragg's motion to
quash. See Fletcher, 193 Colo. at 316-17,
566 P.2d at 347 (trial court did not err in refusing to
require witness to claim her privilege before the jury where
it had determined she would not testify and would instead
invoke the privilege).
Marquise Harris's Invocation of the Fifth
[¶99] During its case-in-chief, the
prosecution introduced a letter in which defendant appeared
to acknowledge his role as the shooter. A police investigator
testified that Marquise Harris had given him the letter and
that defendant had admitted he wrote the letter.
[¶100] Before he was called as a witness,
Harris, through appointed counsel, filed a motion to quash
the subpoena that compelled him to appear and testify in
defendant's case on Fifth Amendment grounds. In response,
defense counsel requested an inquiry into the basis for
Harris's invocation of the privilege. Counsel represented
that the only basis that he could see for Harris's
invocation of the Fifth Amendment was the questions the
defense had " raised throughout th[e] case . . . as to
the authenticity" of the letter Harris had provided to
[¶101] At the parties' request, the
trial court appointed counsel for Harris and ordered Harris
to state the grounds for his invocation of the privilege
before a different judge in an ex parte hearing. After that
hearing, Harris was ordered to testify because the other
court concluded there was no real danger of
[¶102] During direct examination, defense
counsel attempted to establish that Harris had asked for
reward money after disclosing the letter to a local newspaper
and the Denver Broncos football team. Defense counsel asked
Harris whether he had ever " in [his] life" given
" information to the prosecution." In response,
Harris asserted his Fifth Amendment privilege and his
attorney also objected on those grounds.
[¶103] At a subsequent bench conference,
defense counsel asserted that Harris " has made a
pattern of . . . creating evidence and disclosing it in an
exchange for trying to get a benefit." Defense counsel
represented that a prior instance had occurred in connection
with a 2001 murder case for which Harris had no criminal
[¶104] The trial court inquired why the
Fifth Amendment issue was not brought up when the court
ordered a hearing before a different judge to address the
witness's Fifth Amendment privilege. Defense counsel
responded that he had not raised it because the witness had
no Fifth Amendment right in this particular instance.
[¶105] The court sustained Harris's
assertion. It reasoned that defense counsel should have
indicated his intent to address this issue prior to the ex
parte hearing, but had failed to do so. The court also noted
that the incident occurred in 2001 and referenced CRE 403.
Preservation and Standard of Review
[¶106] The parties agree that defendant
properly preserved this issue for appellate review.
[¶107] We review a trial court's
decision regarding the admissibility of evidence for an abuse
of discretion. Beilke, 232 P.3d at 149. " A
trial court abuses its discretion when its ruling is
manifestly arbitrary, unreasonable, or unfair."
[¶108] We review de novo the propriety of a
witness's assertion of his or her Fifth Amendment
privilege. See People v. Ruch, 2013 COA 96,
¶ 43; Smith, 275 P.3d at 720.
[¶109] " [B]efore a court can compel a
response . . . in the face of a claim of the privilege, it
must be ' perfectly clear, from a careful
consideration of all the circumstances in the case, that the
witness is mistaken, and that the answer[s] cannot
possibly have such tendency' to incriminate."
People v. Razatos, 699 P.2d 970, 976 (Colo. 1985)
(emphasis in original) (quoting Hoffman v. United
States, 341 U.S. 479, 488, 71 S.Ct. 814, 95 L.Ed. 1118
[¶110] A trial court may exclude relevant
evidence " if its probative value is substantially
outweighed by . . . considerations of undue delay." CRE
403. Although Colorado appellate courts have not directly
addressed the " undue delay" provision of CRE 403,
the rule " is substantially similar to its federal
counterpart, and, therefore, we may look to federal authority
for guidance in construing the state rule." People
v. Williams, 89 P.3d 492, 494 (Colo.App. 2003) (citing
Bernal v. People, 44 P.3d 184 (Colo. 2002)).
[¶111] Under the federal rule, the term
" delay" refers to " the prolonging of the
length of the trial and can be read properly in conjunction
with the other exclusionary factors: waste of time, or
needless presentation of cumulative evidence."
United States v. Smithers, 212 F.3d 306, 316 (6th
Cir. 2000) (internal quotation marks omitted). Thus, this
consideration serves the important function of preserving
" a scarce public resource by increasing judicial
efficiency." Kenneth W. Graham, Jr., 22A Federal
Practice & Procedure § 5218 (2d ed. 2014).
[¶112] Defendant contends that the trial
court erred by refusing to permit defense counsel to ask
Harris whether he had ever, " in [his] life," given
" information to the prosecution." We are not
[¶113] We determine the propriety of a trial
court's decision with respect to a witness's
invocation of the privilege based upon " the information
known to" the trial court at the time.
Blackwell, 251 P.3d at 474.
[¶114] At the outset, we note that the trial
court gave defense counsel an opportunity to set forth the
issues to be addressed at the ex parte hearing before a
different judge. In response, counsel indicated that the only
issue was the one that had been " raised throughout
th[e] case . . . as to the authenticity" of the letter
Harris had provided to police. Counsel did not mention the
[¶115] Whether Marquise Harris had a valid
claim to the privilege with respect to defense counsel's
question was far from clear. Cf. Razatos,
699 P.2d at 976 (it must be perfectly clear that a
witness's answer cannot possibly incriminate him before
the trial court can compel an answer). On the one hand,
defense counsel argued that Harris did not have any criminal
exposure in the 2001 case. On the other hand, defense counsel
alleged Harris had " creat[ed] evidence and disclos[ed]
it in exchange for . . . a benefit."
[¶116] As the prosecutor pointed out, there
is no statute of limitations for " any forgery" in
Colorado. § 16-5-401(1)(a), C.R.S. 2014. And the statute
of limitations for perjury " does not begin to run until
the criminal act is discovered." People v.
McKinney, 99 P.3d 1038, 1042 (Colo. 2004) (citing §
16-5-401(4.5)(p), C.R.S. 2014). Thus, given defense
counsel's proffer, it was at least possible that
Harris's response could have incriminated him.
Cf. Blackwell, 251 P.3d at 474 (trial court
could not compel an answer where the prosecutor and the
witness's attorney indicated witness may have had a valid
claim of privilege).
[¶117] Based on the information before it,
the trial court was faced with a dilemma: (1) sustain the
invocation of privilege, as it did; or (2) seek out yet
another judge to hold an additional ex parte hearing
regarding Harris's criminal exposure in the 2001
[¶118] We conclude the trial court did not
abuse its discretion by deciding to proceed in the manner it
did. In his opening brief, defendant claims that the trial
court's ruling prevented him from calling into question
Harris's credibility as to how he obtained the letter and
his motive for disclosing it to police. But the prosecutor
had elicited testimony indicating defendant admitted the
letter was in his handwriting. And the parties had stipulated
that Harris had sought a $100,000 reward as well as monetary
payments from a newspaper in exchange for the letter. As a
result, the probative value of Harris's prior act was
low. See Saiz, 32 P.3d at 446 (establishing
the probative value of a certain piece of evidence requires
consideration of the logical force of the evidence and the
proponent's need for it in light of other available
[¶119] Further, a second ex parte hearing
before a different judge would certainly have prolonged the
trial. See Smithers, 212 F.3d at 316.
Moreover, that amount of delay was " undue" because
defense counsel had been given the opportunity to mention the
2001 incident before the ex parte hearing, but had failed to
do so. See CRE 403 (trial court may exclude relevant
evidence due to considerations of undue delay). Hence, we
perceive no error.
[¶120] Concerning the issue of whether the
trial court's decision excessively limited
defendant's ability to examine Marquise Harris, we reject
the contention. The court's limitations were appropriate
and within the bounds of its prerogative under the federal
and state constitutions.
Daniel Harris's Prior Consistent Statements
[¶121] Defendant contends the trial court
abused its discretion by admitting the entire videotaped
interview of Harris as a prior consistent statement. He also
asserts that the trial court should have issued a limiting
instruction and that the admission of the evidence without
such an instruction violated his constitutional rights. We
Preservation and Standard of Review
[¶122] The parties agree the defendant
preserved the trial court's evidentiary ruling for
review. We review a trial court's evidentiary rulings for
an abuse of discretion. People v. Welsh, 80 P.3d
296, 304 (Colo. 2003). A trial court abuses its discretion
only where its decision is manifestly arbitrary,
unreasonable, or unfair. Id.
[¶123] However, defense counsel did not
assert in the trial court that it should issue a limiting
instruction or that the trial court's decision to admit
the evidence without such an instruction violated
defendant's constitutional rights. Accordingly, we will
review those contentions for plain error. See
Wilson, ¶ 31 ( " [B]ecause defense counsel
never asserted in the trial court that any constitutional
right was implicated, we apply the plain error standard of
review." ); People v. Griffin, 224 P.3d 292,
298 (Colo.App. 2009) (Because defense counsel " did not
request a limiting instruction, we apply the plain error
standard of review." ). Under that standard, we will
reverse only if the defendant " shows that the court
committed an obvious and substantial error that undermined
the fundamental fairness of the trial so as to cast serious
doubt on the reliability of the judgment of conviction."
Griffin, 224 P.3d at 298.
[¶124] In Colorado, a witness's prior
consistent statements are admissible under two distinct
theories. See People v. Elie, 148 P.3d 359,
362 (Colo.App. 2006). Under CRE 801(d)(1)(B), such statements
may be admitted as substantive evidence if the requirements
of that rule are met. People v. Eppens, 979 P.2d 14,
20 (Colo. 1999). They may also " be used for
rehabilitation when a witness' credibility has been
attacked, as such statements are admissible outside CRE
801(d)(1)(B)." Id. at 21.
[¶125] Under either theory, " [t]he
rehabilitative uses of such statements are still governed by
the general principles of relevancy found in CRE 401, 402,
and 403." Id. at 21-22. Thus, a " trial
court must determine whether the statements have some
probative force bearing on the credibility of the witness
beyond the mere fact that the witness has repeated on a prior
occasion a statement consistent with his or her trial
testimony." Id. at 22. The court must also
" be mindful of the prohibition against the needless
presentation of cumulative evidence." Id.
[¶126] " Determining 'how much of a
prior consistent statement is admissible is based upon its
relevance and probative use'" which " turns on
the scope of impeachment and the attack on the witness's
credibility." People v. Miranda, 2014 COA 102,
¶ 15 (quoting Elie, 148 P.3d at 362). "
'If the impeachment goes only to specific facts, then
only prior consistent statements regarding those specific
facts are relevant and admissible.'" People v.
Banks, 2012 COA 157, ¶ 36 (quoting Elie,
148 P.3d at 362) ( cert. granted on other grounds
June 24, 2013). If, however, " the impeachment is
general and not limited to specific facts, then the jury
should have access to all the relevant facts, including
consistent and inconsistent statements." Elie,
148 P.3d at 362; see also People v.
Halstead, 881 P.2d 401, 403 (Colo.App. 1994) (citing
People v. Tyler, 745 P.2d 257, 259 (Colo.App.
[¶127] On appeal, defendant appears to argue
that CRE 801(d)(1)(B) provides the only avenue for a court to
admit such statements and that the requirements of the rule
were not met because there was no claim of " recent
fabrication." This argument directly contradicts the
supreme court's holding in Eppens and we
therefore reject it. See 979 P.2d at 21 (" We
concur with the numerous courts that have concluded that Rule
801(d)(1)(B) was not intended to provide the exclusive avenue
for the introduction of prior consistent statements." ).
[¶128] Defendant also argues that the trial
court's decision to admit the evidence for rehabilitation
was erroneous because the interview contained both consistent
and inconsistent statements, as well as statements that were
neither consistent nor inconsistent.
Therefore, defendant argues, some portions of the videotape
were admitted as substantive evidence. This argument ignores
the scope of defense counsel's impeachment and attack on
[¶129] At the start of defense counsel's
cross-examination, counsel asked Harris whether he had "
a habit of telling stories to get [him]self out of
trouble?" This question was followed by inquiry into
Harris's prior felony convictions for providing false
information to police and prior specific instances in which
he had been dishonest with the police officers investigating
defendant's case. Cf. Halstead, 881
P.2d at 403 (impeachment was a general attack on the
witness's credibility where the cross-examination
included over thirty references to the witness's prior
statements to police).
[¶130] Defense counsel also extensively
cross-examined Harris about the requirements of his plea
agreement as well as the benefits he expected to receive if
he met those requirements to the prosecution's
satisfaction. Cf. Banks, ¶ 37
(questioning about the witness's motive to lie brings
into question a witness's general truthfulness).
[¶131] In addition, defense counsel
cross-examined Harris on almost every aspect of his account
of the crime, including his actions at the nightclub, his
relationship with defendant, the interactions between the men
in the white Tahoe, who drove the car, who did the shooting
and from which angle, what the gun looked like, his actions
after the shooting stopped, his conversations with defendant
and others in the days following the shooting, and his flight
to Mexico. Such a comprehensive examination constitutes a
general attack on the credibility of Harris's version of
events. Elie, 148 P.3d at 363.
[¶132] We agree with the trial court that
because it gave defense counsel extensive leeway to attack
Harris's credibility with respect to his testimony in
this case and his prior interactions with police officers,
admission of the entire video was proper to give the jury the
full picture of what he had said to the police. See
Banks, ¶ 39 (" [A]ll of the prior
statements were relevant and admissible to give the jury a
complete picture of [the] witnesses' credibility."
[¶133] Therefore, we conclude that the trial
court did not abuse its discretion by admitting the
videotaped interview. Id.
[¶134] Concerning defendant's assertion
that the court should have issued a limiting instruction,
" [a]s a general rule, defense counsel is charged with
the task of deciding whether a limiting instruction is
desirable." People v. Thomas, 345 P.3d 959,
2014 COA 64, ¶ 58. Absent a statutory requirement, a
trial court is under no obligation to issue a limiting
instruction sua sponte. Griffin, 224 P.3d at 298-99.
[¶135] Because defense counsel did not
request such an instruction and defendant has not pointed us
to any case law or statute that requires such an instruction,
we discern no error in the lack of an instruction regarding
this evidence. Thomas, ¶ 59.
[¶136] We also conclude that the trial court
did not err, let alone commit plain error, with respect to
defendant's constitutional rights. See
People v. Rincon, 140 P.3d 976, 981 (Colo.App. 2005)
(finding no plain error with respect to the defendant's
constitutional rights where prior consistent statements were
admissible to rehabilitate witness testimony).
Grand Jury Testimony of Unavailable Witnesses
[¶137] Defendant asserts that the trial
court erred in refusing to admit the grand jury testimony of
two witnesses, Mario Anderson and Markie Jackson-Keeling, who
refused to testify at trial. Defendant did not include in the
record the transcript of their testimony before the grand
jury, and the motions division of this court denied his
request to supplement the record. Under these circumstances,
we cannot address his assertion.
[¶138] Both Anderson and Jackson-Keeling,
who may have been passengers in the white Tahoe during the
shooting, were called as witnesses in the grand jury
proceeding that produced the indictment in this case.
Apparently, their testimony was favorable to defendant.
[¶139] After the men were called as
witnesses at trial, they declared their intent to invoke
their Fifth Amendment rights and refused to testify. The
prosecution then granted them immunity and the trial court
ordered them to testify. Both men declined to do so and the
court held them in contempt.
[¶140] Defendant then sought to introduce
the transcripts of the testimony the men had given before the
grand jury under CRE 804(b)(1) (" [I]f the declarant is
unavailable as a witness[,] . . . [t]estimony given as a
witness at another hearing of the same or a different
proceeding, [is not excluded by the hearsay rule] . . . if
the party against whom the testimony is now offered . . . had
an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination." ). The trial
court found that both men were unavailable within the meaning
of CRE 804(a), but also determined that " the similar
motive" requirement of CRE 804(b)(1) had not been
satisfied. The court reasoned the motive requirement had not
been met because: (1) " the grand jury in this case was
used primarily as an investigative tool" ; (2) much of
the information regarding the men had not come to light
before they testified at the grand jury; and (3) the burden
of proof at a grand jury proceeding -- probable cause -- is
" an extraordinarily low threshold."
[¶141] On appeal, defendant argues that the
trial court abused its discretion by refusing to admit the
grand jury testimony because the prosecution's motive to
develop that testimony was similar to the motive it would
have held at trial, had the witnesses testified.
[¶142] But any inquiry as to whether the
" similar motive" requirement of CRE 804(b)(1) has
been met would, at the very least, require a review of the
grand jury testimony. See United States v.
Foster, 128 F.3d 949, 956 (6th Cir. 1997); United
States v. Miller, 904 F.2d 65, 68 n.3, 284 U.S.App.D.C.
245 (D.C. Cir. 1990). Defendant has not provided the grand
jury testimony that he contends should have been admitted.
Therefore, we have no way to review the testimony set forth
in those transcripts. Cf. People v. Wells,
776 P.2d 386, 390 (Colo. 1989) ( " It is the
defendant's responsibility to designate the record on
appeal, including such parts of the trial proceedings as are
necessary for purposes of the appeal, and to ensure that the
record is properly transmitted to an appellate court."
(citing C.A.R. 10(b); People v. Thompson, 770 P.2d
1282, 1283 n.1 (Colo. 1989); People v. Velarde, 200
Colo. 374, 375, 616 P.2d 104, 105 (1980))).
[¶143] As a result, " the record is
insufficient to permit the conclusion that the trial
court" abused its discretion, id., and we
therefore cannot review the contention.
[¶144] Defendant contends that the trial
court gave an erroneous jury instruction regarding
complicity. We disagree.
Preservation and Standard of Review
[¶145] The parties agree that defendant
adequately preserved this issue for review.
[¶146] " 'We review jury
instructions de novo to determine whether the instructions as
a whole accurately informed the jury of the governing
law.'" People v. Reeves, 252 P.3d 1137,
1139 (Colo.App. 2010) (internal quotation marks omitted).
[¶147] Complicity " is . . . a theory
by which a defendant becomes accountable for a criminal
offense committed by another." People v.
Thompson, 655 P.2d 416, 418 (Colo. 1982). A person is
guilty as a complicitor " if, with the intent to promote
or facilitate the commission of the offense, he or she aids,
abets, advises, or encourages the other person in planning or
committing the offense." § 18-1-603, C.R.S. 2014.
[¶148] " [U]nder a complicity theory,
it is not necessary that any single person commit all the
elements of the underlying offense." Elie, 148
P.3d at 365. " It is only necessary that the acts of the
complicitor and the other actor or actors, together,
constitute all acts necessary to complete the underlying
[¶149] " An instruction on complicity
may be given when supported by evidence admitted at trial
that two or more people engaged jointly in a crime."
People v. Grant, 30 P.3d 667, 670 (Colo.App. 2000).
The jury should be instructed that
(1) A crime must have been committed. (2) Another person must
have committed [all or part of] the crime. (3) The defendant
must have had knowledge that the other person intended to
commit [all or part of] the crime. (4) The defendant must
have had the intent to promote or facilitate the commission
of the crime. (5) The defendant must have aided, abetted,
advised, or encouraged the other person in the commission or
planning of the crime.
Bogdanov v. People, 941 P.2d 247, 254 n.10,
amended, 955 P.2d 997 (Colo. 1997), abrogated on
other grounds by Griego v. People, 19 P.3d 1, 7
[¶150] " The language contained in the
brackets [noted above] should be included in the complicity
jury instruction only in those cases where [two] or more
persons, possibly including the defendant, together committed
the essential elements of the underlying crime."
Bogdanov, 955 P.2d at 997.
[¶151] " [W]hen a defendant charged
with a crime under a complicity theory did not actually
commit any of the essential elements of the crime, it is
error to include the 'all or part of' language in the
instruction." Elie, 148 P.3d at 365. However,
the " all or part of" language is " proper in
a case where two or more persons together commit a crime, but
neither one committed all the elements of the crime."
[¶152] Here, the trial court gave an
instruction that tracked the language of section 18-1-603, as
approved by the supreme court in Bogdanov, 941 P.2d
at 254 n.10, and decided to include the " all or part
[¶153] Defendant asserts he " would not
have committed any of the essential elements of [the]
crime[s]" charged if he " was not the shooter but .
. . was [instead] the driver." Thus, he argues that the
court should not have included the " all or part
of" language in the instruction. We disagree.
[¶154] The jury was presented with evidence
that would have supported several scenarios of how the
shooting occurred. One scenario was that defendant was solely
responsible for the shooting and thus was guilty as a
principal. In addition, however, as the trial court noted,
the evidence could support the theory that
there were two shooters based on the bullets and the caliber.
And we could have seen some unnamed person, either
Jackson-Keeling, or Vernone Edwards, sitting in the passenger
side of the front seat, Daniel Harris in the back, and/or
flip those. And those two as the shooters and one of those
may have used [defendant's] .40 caliber handgun, and
[defendant] drove for the express purpose of getting this
drive-by shooting to happen.
[¶155] If the jury believed this latter
view, and it found that all other elements of the complicity
instruction had been proved, it could have legitimately found
defendant guilty of murder, because the " all or part
of" language " should be included in the complicity
jury instruction . . . where [two] or more persons, possibly
including the defendant, together committed the essential
elements of the underlying crime." Bogdanov,
955 P.2d at 997.
[¶156] In this case, causation was one of
the elements of first degree murder (extreme indifference),
first degree murder (after deliberation), and second degree
assault. The trial court properly instructed the jury that
the term " 'cause' means that act . . . which in
natural and probable sequence produced the claimed injury. It
is a cause without which the claimed injury would not have
been incurred." See People v.
Moreland, 193 Colo. 237, 242 n.11, 567 P.2d 355, 359
[¶157] If the jury's analysis tracked
the scenario set forth by the trial court, it could have
reasonably concluded that defendant intentionally gave his
.40 caliber handgun to the shooter and drove the white Tahoe
with the express purpose of facilitating the shooting.
Because these acts would have been acts without which the
injuries sustained by the victims would not have occurred,
the jury could have concluded that defendant caused the
injuries. Cf. State v. Smith, 651 So.2d
890, 899-900 (La. Ct.App. 1995) (driver in drive-by shooting
possessed requisite specific intent and knowledge to be held
liable as a complicitor where he turned the car lights off
and drove slowly past the targeted house); People v.
Turner, 125 Mich.App. 8, 336 N.W.2d 217, 218-19 (Mich.
Ct.App. 1983) (the defendant could be held liable as a
complicitor where he supplied the principal with the firearm
used and directed the principal to aim the gun at the
[¶158] Therefore, the trial court did not
err by including the " all or part of" language
with respect to the crimes set forth above. See
Bogdanov, 955 P.2d at 997.
[¶159] Concerning attempted first degree
murder (extreme indifference), that crime does not require
proof of causation. See People v. Torres,
224 P.3d 268, 277-78 (Colo.App. 2009) (citing § §
18-2-101, 18-3-102(1)(d), C.R.S. 2014). Instead, a person is
guilty of attempted first degree murder (extreme
indifference) if he or she " knowingly" acts with
" an attitude of universal malice manifesting extreme
indifference to the value of human life" and takes
" a substantial step toward the commission of"
murder. Id. at 276. " A substantial step is
'any conduct that is strongly corroborative of the
actor's criminal objective.'" Miranda,
¶ 76 (quoting People v. Lehnert, 163 P.3d 1111,
1113 (Colo. 2007)).
[¶160] But even so, the jury could have
reasonably determined that defendant's actions as the
driver of the white Tahoe constituted a substantial step
towards the commission of first degree murder (extreme
indifference). Cf. Lehnert, 163 P.3d at
1115 (" [S]earching out a contemplated victim . . . [is
a] useful example of conduct considered capable of strongly
corroborating criminal purpose." ). And it could have
also concluded that others within the car also took
substantial steps towards the commission of the crime.
Cf. People v. Jackson, 972 P.2d 698, 701
(Colo.App. 1998) (the defendant's substantial step "
need not be the last proximate act necessary to complete the
offense." ). Therefore, the jury could have reasonably
concluded defendant and at least one other person committed
the essential elements of attempted first degree murder
[¶161] Accordingly, we conclude that the
trial court properly included the " all or part of"
language in the jury instruction regarding complicity.
See Bogdanov, 955 P.2d 997; see
also Elie, 148 P.3d at 365 ( To be held liable
as a complicitor " [i]t is only necessary that the acts
of the complicitor and the other actor or actors, together,
constitute all acts necessary to complete the underlying
Prosecution's Knowing Use of False Evidence
[¶162] Defendant makes two related
contentions that stem from his assertion that Daniel Harris
was the shooter. First, he contends that the prosecution
violated his due process rights because it knowingly used
Harris's false evidence to obtain his conviction. Second,
he contends the prosecution improperly argued inconsistent
factual theories. The People respond that we lack
jurisdiction to review these contentions. We conclude that we
have jurisdiction to review the contention but nevertheless
determine that defendant's claims fail.
[¶163] Relying upon People v.
Bergen, 883 P.2d 532 (Colo.App. 1994), the People assert
that, as a statutory court, we do " not possess general
powers of supervision over lower courts or attorneys
appearing therein, except for the ability to issue 'any
writs, directives, orders, and mandates necessary to the
determination of cases within [our] jurisdiction,'"
and thus, we lack jurisdiction to address defendant's
contention. Id. at 542 (quoting § 13-4-102(3),
C.R.S. 2014); see also Colo. Const. art. VI, §
2(1) (" The supreme court . . . shall have general
superintending control over all inferior courts." ).
They assert that defendant's contentions ask us to
exercise control over the district court, which only the
Colorado Supreme Court may do. We disagree.
[¶164] In Bergen, the defendant
asserted that the prosecution had committed misconduct in its
handling of the grand jury, and requested dismissal of the
indictment under a theory of outrageous governmental conduct.
A division of this court stated that " a supervisory
power of this court to sanction prosecutorial misconduct by
ordering the dismissal of an indictment is uncertain,"
and that, even if there were such a supervisory power,
dismissal of the indictment was unwarranted. Id. The
division then addressed and rejected the defendant's
contention that the behavior of government agents was so
outrageous as to violate fundamental fairness and to shock
the universal sense of justice. Id. (citing
People v. Auld, 815 P.2d 956 (Colo.App. 1991)).
[¶165] Bergen is inapposite because
defendant is not requesting dismissal of the indictment, nor
is he requesting relief based on any supervisory power
possessed only by the supreme court. Instead, defendant seeks
reversal of the judgment of conviction and remand for a new
trial, relief that this court is statutorily authorized to
provide. § 13-4-102(1).
Preservation and Standard of Review
[¶166] Defendant did not preserve either of
these contentions for appellate review. Therefore, we review
them for plain error. People v. Miller, 113 P.3d
743, 749-50 (Colo. 2005).
[¶167] " It is fundamental that
prosecutors may not present or allow perjured
testimony." People v. Medina, 260 P.3d 42, 48
(Colo.App. 2010) (collecting cases). " False testimony,
when knowingly used, or when used recklessly or without
regard or inquiry as to the truth of the facts asserted, is a
due process violation that requires reversal."
People v. Dunlap, 124 P.3d 780, 807 (Colo.App. 2004)
(citing De Luzio v. People, 177 Colo. 389, 494 P.2d
[¶168] Appellate courts in this state have
not established a test to determine whether a defendant's
constitutional rights are violated by the prosecution's
use of perjured testimony. However, " [u]nder federal
case law, [a] defendant must show three things: first, that
the prosecution's case included perjured testimony;
second, that the prosecution knew or should have known of the
perjury; and third, that the perjury was material."
Medina, 260 P.3d at 48 (citing United States v.
Saadeh, 61 F.3d 510, 523 (7th Cir. 1995); United
States v. Duke, 50 F.3d 571, 577-78 (8th Cir. 1995)).
[¶169] " The first two requirements . .
. are heavily fact dependent." Id. "
Because those issues normally cannot be resolved from a cold
trial record, these types of claims 'usually' must be
'made on a collateral attack.'" Id.
(quoting United States v. Helmsley, 985 F.2d 1202,
1206 (2d Cir. 1993)).
[¶170] " A person commits perjury in
the first degree if in any official proceeding he knowingly
makes a materially false statement, which he does not believe
to be true, under an oath required or authorized by
law." § 18-8-502(1), C.R.S. 2014.
[¶171] " Due process does not preclude
a prosecutor from advancing alternative theories upon which a
jury properly could convict one defendant in one trial."
Medina, 260 P.3d at 50. " Issues of
inconsistency [that] arise within a single trial . . . do not
threaten the basic fairness of the process" because
" the fact finder can weigh inconsistent alternatives in
the context of the whole case." Anne Bowen Poulin,
Prosecutorial Inconsistency, Estoppel and Due Process:
Making the Prosecution Get Its Story Straight, 89 Cal.
L.Rev. 1423, 1429 (2001). Thus, alternative legal theories do
not constitute inconsistent legal theories. See
Medina, 260 P.3d at 50.
[¶172] Contrary to defendant's
assertions, we cannot conclude Harris committed perjury in
his testimony on the record before us.
[¶173] In his opening brief, defendant
argues that Harris's testimony was not supported by the
physical evidence or was in direct conflict with the
testimony of other witnesses. For example, defendant asserts
that Harris was " insistent there was only one weapon
involved." That is true. But on direct examination,
Harris testified that he could not " say for
certain" whether or not the front seat passenger was
also firing a weapon. And on cross-examination Harris
testified that he had only " seen one" handgun.
[¶174] With respect to the events inside and
immediately outside of the nightclub, defendant argues that
Harris perjured himself when he claimed that he " did
not remember" being in any altercations because the
videotaped surveillance footage showed otherwise.
[¶175] Whether Harris was honest when he
said he had only " seen one" gun and that he "
did not remember" being involved in any altercations at
the club involves credibility determinations. Cf.
United States v. Harris, 751 F.3d 123, 127 (3d Cir.
2014) (assessment of the defendant's sincerity hinged on
his demeanor and reaction to a surveillance video). " It
is the function of the [trier of fact], and not the reviewing
court, to weigh evidence and determine the credibility of the
witnesses." People v. Pitts, 13 P.3d 1218, 1221
[¶176] Accordingly, we cannot conclude as a
matter of law that Harris committed perjury. Hence, we
perceive no error by the trial court, let alone plain error,
in not sua sponte finding a due process violation.
[¶177] We also conclude that the trial court
did not err, let alone commit plain error, by allowing the
prosecution to present alternative legal theories in this
single trial involving this single defendant. See,
e.g., Erwin v. People, 126 Colo. 28, 30-31, 245
P.2d 1171, 1172 (1952) (because the prosecution charged the
defendant as a principal, but evidence was introduced that he
may have aided, abetted, or assisted in the crime instead, it
was proper for the jury to decide whether the defendant
participated as a principal or an accessory); People v.
Hall, 60 P.3d 728, 730 (Colo.App. 2002) (" [The]
trial court did not err in permitting the prosecution to
present evidence that defendant committed first degree murder
after deliberation either as a complicitor or as a
Motion for New Trial Based on Juror Misconduct
[¶178] Defendant asserts that certain
jurors' actions occurring during trial constitute juror
misconduct. He contends that his convictions must be
reversed, or, in the alternative, that we must remand the
case for a hearing. We conclude that a remand is required.
[¶179] As a threshold issue, defendant
asserts that he adequately preserved this issue by filing a
motion for a new trial under Crim. P. 33(a). The People,
however, contend that we should not consider defendant's
arguments because he did not timely file that motion. We
first address and reject the People's contention.
Standard of Review
[¶180] Interpretation of court rules and
statutes are " questions of law, which we review de
novo." Gleason v. Judicial Watch, Inc., 2012
COA 76, ¶ 14, 292 P.3d 1044.
[¶181] As relevant here, Crim. P. 33(c)
provided at the time that " a motion for a new trial . .
. shall be filed within 15 days" (amended to 14 days in
2011) " after verdict or finding of guilt or within such
additional time as the court may fix during the 15-day
period." The People rely on the language stating that a
court may fix additional time but only if it does so "
during the 15-day period," arguing that no extension of
time beyond any extension originally granted may occur. In
support of their contention, the People rely upon People
in Interest of Iuppa v. District Court, 731 P.2d 723,
724 (Colo. 1987).
[¶182] In Iuppa, the trial court
had received and accepted a guilty verdict on June 5, 1986,
relating to robbery charges against the defendant. The trial
court allowed the defendant thirty days to file a motion for
new trial. At the sentencing hearing on July 14, thirty-nine
days after the verdict date, defense counsel stated he had
intentionally not filed a motion for new trial. Even so, the
court granted him an additional week to file such a motion.
[¶183] The defendant filed a motion for
judgment of acquittal or new trial within the one-week
period. The trial court initially ruled that it had lost
jurisdiction to consider the defendant's motion, but
later changed its ruling and decided that it retained
jurisdiction over the new trial motion. The court then
[¶184] The District Attorney sought review
from the supreme court under C.A.R. 21, which issued a rule
to show cause to determine whether the court " acted
without and in excess of jurisdiction when it granted the
motion for new trial." The supreme court stated, in its
discussion of Crim. P. 33:
Crim. P. 33(c), as amended, is clear as to the time limit
placed upon a motion for new trial, and Crim. P. 33(b) is
clear as to the jurisdictional requirement when the court
orders a party to file a motion for a new trial. Here, the
court initially granted the defendant thirty days within
which to file his motion for new trial, thereby extending the
fifteen day period. Such an extension is proper under Crim.
P. 33(c) because it was set " during the fifteen day
period." Thirty-nine days then expired, and the court
granted the defendant additional time to file the motion for
new trial. The rule clearly prohibits the subsequent
extension of time because it was granted after the original
fifteen day period had expired.
Iuppa, 731 P.2d at 725. The supreme court therefore
reversed the trial court's grant of a new trial.
[¶185] In our view, Iuppa is
distinguishable from the circumstances present here for
[¶186] First, the decision does not address
Crim. P. 45, which deals with time issues in criminal cases.
That rule provides for enlargement of time periods in
subsection (b) and states, in pertinent part:
When an act is required or allowed to be performed at or
within a specified time, the court for cause shown may at any
time in its discretion:
(1) With or without motion or notice, order the period
enlarged if application therefor is made before expiration of
the period originally prescribed or of that period as
extended by a previous order; or
(2) Upon motion, permit the act to be done after expiration
of the specified period if the failure to act on time was the
result of excusable neglect.
Crim. P. 45(b).
[¶187] Thus, under the plain language of
Crim. P. 45(b)(1), a court retains discretion to " order
[a] period enlarged" if either (1) a request
therefor is made before the expiration of the
original period; or (2) a request is made during a
period that has been extended by a previous order.
[¶188] Iuppa did not address the
application of Crim. P. 45(b)(1). Indeed, all that case said
was that Crim. P. 33(c) " clearly prohibits the
subsequent extension of time because it was granted after the
original fifteen day period had expired." 731 P.2d at
725. It appears that no party raised the application of Crim.
P. 45(b)(1), even though other existing precedent had held
that the filing requirements of Crim. P. 33 were tempered by
Crim. P. 45. See, e.g., People v.
Dillon, 655 P.2d 841, 844 (Colo. 1982) (" In
Colorado the filing requirements set forth in Rule 33 are . .
. tempered by Rule 45." ); People v. Moore, 193
Colo. 81, 82, 562 P.2d 749, 750 (Colo. 1977) ( " Rule
33(b) provides for extensions of time only if requested
before the time for filing has expired. That rule is
tempered, however, by Rule 45(b)." ); People v.
Masamba, 39 Colo.App. 197, 199, 563 P.2d 382, 383 (1977)
(the defendant may show late filing of his motion for a new
trial was the result of excusable neglect).
[¶189] Second, in Iuppa, the motion
for new trial was filed after the expiration of the
thirty-day period originally granted by the court. Thus, the
supreme court had no reason to address the provision in Crim.
P. 45(b)(1) because defendant had not made a request for an
enlargement before the end of the original thirty-day period,
nor had the court granted any extension of that thirty-day
period. The court mentioned, in passing, that there was no
excusable neglect asserted in the case, thus acknowledging
that the only provision available to the defendant there
arose under Crim. P. 45(b)(2), which allows a filing if the
moving party can demonstrate excusable neglect.
[¶190] Accordingly, Iuppa does not
control our analysis.
[¶191] Here, the People argue that (1) the
jury found defendant guilty on March 11, 2010; (2) under
Crim. P. 33(c), his motion for new trial was due within
fifteen days or within such additional time as the trial
court fixed during that fifteen-day period; (3) the court
therefore only had until Friday, March 26, to fix a different
time period and it did not do so until March 29. Thus, they
contend, all the extensions from March 26 to March 29 and
from March 29 to April 19 were not authorized by Crim. P. 33.
[¶192] The court's enlargements of time
were permissible under Crim. P. 45(b)(1). The jury returned
its guilty verdicts on March 11, 2010. On March 25, within
the fifteen-day period allowed under Crim. P. 33, the
prosecution filed a motion for additional time to file
posttrial motions, specifically requesting an order "
directing the defense to file any
postconviction/pre-sentencing motions on or before April
16, 2010 at 5:00 p.m."
[¶193] On March 26, 2010, still within the
fifteen-day period, defendant filed a motion asking the trial
court to " clarify that the deadline requested by the
[p]rosecution for all posttrial motions includes any motion
for a new trial."
[¶194] On March 29, 2010, the trial court
acknowledged receipt of both motions, stated that it was
" fully advised," and extended the posttrial
motions deadline to April 16, 2010. Thereafter, the trial
court extended the deadline to April 19, 2010, after
receiving and granting defendant's motion for extension
filed on April 16, 2010. Defendant filed his motion for a new
trial on April 19, 2010.
[¶195] The prosecution's request for
enlargement beyond the fifteen-day period was made before the
expiration of the original fifteen-day period. Hence, the
court was authorized to, and did, grant an extension.
See Crim. P. 45(b)(1). The court also had authority
to grant the later requests that were made during the periods
that had been extended by the court's March 29 and April
16 orders. See id.
[¶196] Contrary to the People's
contention, it was not necessary for the court to actually
grant the prosecution's motion to extend the deadline
before the fifteen-day period expired. Crim. P. 45 states
that the predicate for enlargement is the filing of an
application (that is, a request) for enlargement within the
appropriate period, not the actual granting of the extension.
[¶197] We therefore conclude that
defendant's new trial motion was timely.
Admissibility of Affidavit
[¶198] Defendant attached an affidavit
signed by his investigator to his motion for a new trial. The
People argue that the trial court properly denied
defendant's motion because defendant never established
the truth of the hearsay allegations contained in the
affidavit. We reject the People's contentions.
[¶199] In the affidavit, the investigator
asserted that she interviewed an alternate juror after the
juror had been dismissed at the conclusion of trial. As
discussed in greater detail below, the alternate juror told
her that some members of the jury had engaged in juror
Standard of Review
[¶200] " When confronted with
allegations of irregularity in the jury's proceedings,
the trial judge has broad discretion to determine what manner
of hearing, if any, is warranted." People
v. Mollaun, 194 P.3d 411, 416 (Colo.App. 2008) (internal
quotation marks omitted; emphasis in original). Thus, we
review posttrial rulings regarding juror misconduct for an
abuse of discretion. People v. Pena-Rodriguez, 2012
COA 193, ¶ 13 ( cert. granted in part Aug. 19,
2013). A trial court abuses its discretion when its decision
is manifestly arbitrary, unreasonable, unfair, or based on an
erroneous view of the law. Id.; see also People
v. Hopper, 284 P.3d 87, 92 (Colo.App. 2011).
[¶201] Hearsay is an out-of-court statement
that is offered to prove the truth of the matter asserted.
CRE 801(c). Unless an exemption or exception applies, hearsay
is not admissible. CRE 802.
[¶202] Three divisions of this court have
previously held that " a defendant must establish the
truth of the allegations on which he bases his motion for a
new trial," and the " [f]ailure to establish the
truth of hearsay allegations contained in an affidavit will
warrant denial of a motion for new trial based on alleged
juror misconduct." People v. Rogers, 706 P.2d
1288, 1291 (Colo.App. 1985); accord People v.
Hernandez, 695 P.2d 308, 311 (Colo.App. 1984);
People v. Stephens, 689 P.2d 666, 668 (Colo.App.
[¶203] However, the supreme court has
suggested that the presence of hearsay in an affidavit
alleging juror misconduct should not preclude a court from
considering the substance of the affidavit.
[¶204] In Aldrich v. District
Court, 714 P.2d 1321, 1323 (Colo. 1986), the supreme
court addressed the issue in the context of C.R.C.P. 59 and
rejected the notion that a court should automatically strike
an affidavit containing hearsay. Id. Instead, the
court determined that it was appropriate for the trial court
to consider an affidavit that sets forth " factual
allegations" that are " not conclusory in
nature" and which " detail[s] the information
acquired" by the affiant in " conversations
with" the triers of fact. Id. Consideration of
such an affidavit is appropriate, the court held, because it
indicates the party moving for a new trial " acted upon
a basis of knowledge, not merely suspicion or hope."
[¶205] In Wiser v. People, 732 P.2d
1139, 1140 (Colo. 1987), the defendant presented the
affidavits of a bailiff and his defense counsel regarding
their conversations with jurors to support his motion for a
new trial based on juror misconduct. After setting forth a
new test to determine when juror misconduct requires reversal
(discussed below), the supreme court reviewed the affidavits.
See id. at 1143. The court "
[c]onsider[ed] the reasonable inferences" that could
" be drawn from the affidavits" in a light most
favorable to the defendant and held that reversal was not
required based upon the specific facts alleged. Id.
[¶206] The court's reasoning in
Aldrich and the analysis it undertook in
Wiser indicate that a trial court should not
disregard and cast aside an affidavit alleging juror
misconduct solely because that affidavit contains hearsay.
Instead, the trial court should determine whether the
affidavit sets forth " factual allegations" that
are not " conclusory in nature" to the extent that
it can be reasonably said that the party moving for a new
trial " acted upon a basis of knowledge, not merely
suspicion or hope." Aldrich, 714 P.2d at 1323.
[¶207] To the extent other divisions of this
court have disagreed with this conclusion, we decline to
follow them in this instance. See Stokes v.
Denver Newspaper Agency, LLP, 159 P.3d 691, 695
(Colo.App. 2006) ( decision of one court of appeals division
is not binding on another division).
[¶208] The investigator's affidavit
unquestionably contains hearsay, as it sets forth
out-of-court statements made by the alternate juror to the
investigator, and defendant offers those statements to prove
that various types of juror misconduct occurred. See
CRE 801(c). However, the affidavit presented was specific as
to at least some of the jurors involved, and it identifies
what types of misconduct may have occurred, when it occurred,
and where it occurred. Cf. Pena-Rodriguez,
¶ ¶ 6, 9 (trial court held an evidentiary hearing
regarding potential juror misconduct when the defendant
provided affidavits from defense counsel alleging the "
who, what, when, and where of the allegation" based on
its conversations with jurors (internal quotation marks
[¶209] Thus, the affidavit set forth
specific " factual allegations" that were "
not conclusory in nature" and provided " detail[ed]
. . . information acquired" by the affiant in her "
conversations with the" alternate juror.
Aldrich, 714 P.2d at 1323; cf.
Rogers, 706 P.2d at 1291 (suggesting affidavit might
have been factually specific enough if it had identified the
juror reporting the misconduct).
[¶210] As we discuss further in the sections
that follow, the affidavit also set forth allegations that
did not necessitate inquiry into the jury's deliberative
process. Cf. Black v. Waterman, 83 P.3d
1130, 1138 (Colo.App. 2003) (remanding action for evidentiary
hearing where juror's affidavit regarding another
juror's statements set forth allegation that the trial
court could inquire into under CRE 606(b)).
[¶211] Therefore, we reject the People's
contention that we should decline to review the merits of
defendant's argument solely because of the hearsay
contained in the affidavit. Aldrich, 714 P.2d at
1323. To the extent the trial court did not consider the
allegations set forth in the affidavit when it denied
defendant's motion for a new trial without a hearing, we
conclude that it erred. Cf. Destination Travel,
Inc. v. McElhanon, 799 P.2d 454, 457 (Colo.App. 1990)
(" [T]he statements attributed to the jurors in the
affidavits" of defendant's attorney " are
admissible . . . on the question of whether the jury
discussed or considered matters beyond the evidence admitted
at trial." (citing Aldrich, 714 P.2d at 1323)).
Necessity of a Hearing on Juror Misconduct
[¶212] Defendant contends that the
allegations set forth in the investigator's affidavit are
sufficient to require a new trial. In the alternative,
defendant requests that this matter be remanded for an
evidentiary hearing. We conclude that defendant has not
sufficiently proved, without a hearing, the allegations set
forth in the affidavit so as to warrant a new trial. However,
we agree that a hearing is required.
[¶213] According to the investigator's
affidavit, the alternate juror told her:
o The alternate and two other jurors (at least one of whom
was a deliberating juror) became friends during the course of
trial and would walk to the Parkway Condominiums nearly every
day for lunch. During their walk, the jurors would discuss
the testimony offered at trial " and voted on whether
[defendant] was guilty or not guilty."
o Other unidentified jurors had decided defendant was guilty
while the evidence was still being presented at trial.
o On at least one occasion, the alternate and two other
jurors went to the Parkway Condominiums to watch cars drive
by on Speer Boulevard when it was dark. The purpose of the
jurors' activity was to see whether " they could
tell the colors of the cars." The jurors " could
definitely tell 'white' and 'not
o After deliberations had begun, the alternate juror (who had
been dismissed) and a deliberating juror travelled to the
deliberating juror's home. " The two of them
discussed what was going on during deliberations" and
the deliberating juror told the alternate that the jury
thought defendant was guilty. At the conclusion of their
conversation, the alternate told the deliberating juror to
stick with what he believed and to hang the jury if
necessary. The deliberating juror said that he planned to do
[¶214] In denying defendant's motion for
a new trial, the trial court did not make any findings of
fact but concluded that the motion failed to satisfy
defendant's burden on its face.
Standard of Review
[¶215] We review posttrial rulings regarding
juror misconduct for an abuse of discretion.
Pena-Rodriguez, ¶ 13. A trial court abuses its
discretion when its decision is manifestly arbitrary,
unreasonable, unfair, or based on an erroneous view of the
[¶216] A trial court's denial of a
motion for a new trial based on the jury's exposure to
extraneous information presents a mixed question of law and
fact. See People v. Harlan, 109 P.3d 616,
624 (Colo. 2005); People v. Garrison, 2012 COA 132,
¶ 35. " We review de novo the court's
conclusions of law, but review the court's findings of
fact for an abuse of discretion." Garrison,
[¶217] The Due Process Clauses of the United
States and Colorado constitutions guarantee every criminal
defendant a right to trial by an impartial jury. U.S. Const.
amends. VI, XIV; Colo. Const. art. II, § § 16, 25;
Dunlap, 173 P.3d at 1081. " Due process is
satisfied by a jury capable and willing to decide the case
solely on the evidence before it, and a trial judge ever
watchful to prevent prejudicial occurrences and to determine
the effect of such occurrences when they happen."
People v. Dahl, 160 P.3d 301, 304 (Colo.App. 2007)
(internal quotation marks omitted).
[¶218] Nevertheless, there are limits to a
trial court's ability to inquire into allegations of
juror misconduct. " CRE 606(b) applies to all civil and
criminal cases[,]" Stewart in Interest of Stewart v.
Rice, 47 P.3d 316, 321 (Colo. 2002), and "
generally bars juror testimony concerning jury
deliberations," Garrison, ¶ 36.
Specifically, challenges to the validity of a verdict may not
be based upon: (1) any issue or statement that occurred
during the course of deliberations; (2) the effect of
anything upon any juror's deliberations; or (3) a
juror's mental processes related to the jury's
verdict. See CRE 606(b); see also
Pena-Rodriguez, ¶ 27. " This limitation
protects the finality of verdicts and allows jurors to
deliberate without fear of reprisal, coercion, or
criticism." Pena-Rodriguez, ¶ 27 (citing
Stewart, 47 P.3d at 322; People v. Kriho,
996 P.2d 158, 167 (Colo.App. 1999)).
[¶219] CRE 606(b) contains three exceptions,
two of which are relevant here. First, a juror may testify as
to " whether extraneous prejudicial information was
improperly brought to the jurors' attention." CRE
606(b)(1). Second, a juror may testify as to " any
outside influence that was improperly brought to bear on any
juror." CRE 606(b)(2).
[¶220] Under CRE 606(b)(1), " a court
will set aside a verdict . . . because jurors were improperly
exposed to extraneous prejudicial information where the
defendant demonstrates (1) that extraneous information was
before the jury and (2) 'a reasonable possibility that
the extraneous information would affect the verdict of a
typical jury to the defendant's detriment.'"
Garrison, ¶ 36 (quoting People v.
Holt, 266 P.3d 442, 446 (Colo.App. 2011)).
[¶221] " Generally, an evidentiary
hearing should be held to determine whether extraneous
prejudicial information was in fact communicated to the
jury." Destination Travel, Inc., 799 P.2d at
457 (citing Wiser, 732 P.2d at 1143); cf.
Kendrick v. Pippin, 252 P.3d 1052, 1063 (Colo. 2011)
(concluding an evidentiary hearing was not required because
affidavit alleging juror misconduct relied exclusively on the
jury's exposure to principles derived from the
juror's personal background), abrogated on other
grounds by Bedor v. Johnson, 2013 CO 4, ¶
22, 292 P.3d 924.
[¶222] Information is not extraneous if it
was " part of the juror's background, gained before
the juror was selected to participate in the case and not as
the result of independent investigation into a matter
relevant to the case." Kendrick, 252 P.3d at
1066. However, any information that was not part of the
juror's background and was " not properly received
into evidence or included in the court's instructions is
extraneous to the case and improper for juror
consideration." Harlan, 109 P.3d at 624.
[¶223] Thus, any " 'legal content
[or] specific factual information learned from outside the
record [that is] relevant to the issues in a case
constitute[s] extraneous prejudicial information improperly
before a jury.'" Holt, 266 P.3d at 445
(quoting Kendrick, 252 P.3d at 1064).
[¶224] To determine whether extraneous
information reached the jury, the court may consider evidence
" regarding the source of the extraneous information,
the manner of its acquisition, its content, and its presence
and use in the jury room during deliberations" because
such evidence " is admissible under . . . CRE
606(b)." Harlan, 109 P.3d at 625.
[¶225] " If the court's
fact-finding, as guided by CRE 606(b), shows that jurors
improperly considered extraneous information, a reversal of
the verdict may be required if the defendant was
prejudiced." Id. " [The] defendant bears
the burden of proving that the extraneous information posed a
reasonable possibility of prejudice to him."
Holt, 266 P.3d at 447 (citing Kendrick, 252
P.3d at 1064).
[¶226] " '[T]he term "
reasonable possibility" describes a degree of likelihood
and implies a realistic possibility that the communication
would influence the verdict of a typical juror.'"
Id. (quoting People v. Wadle, 97 P.3d 932,
937 (Colo. 2004)); see also Ravin v. Gambrell By
and Through Eddy, 788 P.2d 817, 821 (Colo. 1990) (The
question is whether the information " had the capacity
to" influence the jury's decision not whether it
" actually influenced a particular juror." ).
[¶227] The supreme court has identified a
number of non-exclusive factors that are helpful in
determining whether the requisite degree of prejudice exists.
See Harlan, 109 P.3d at 626. Those factors
(1) how the extraneous information relates to critical issues
in the case; (2) how authoritative is the source consulted;
(3) whether a juror initiated the search for the extraneous
information; (4) whether the information obtained by one
juror was brought to the attention of another juror; (5)
whether the information was presented before the jury reached
a unanimous verdict; and (6) whether the information would be
likely to influence a typical juror to the detriment of the
Premature Deliberations and Outside Influences
[¶228] While the law regarding extraneous
information is well-settled, appellate courts in Colorado
have rarely addressed a claim of juror misconduct premised on
[¶229] A division of this court has held
that a defendant must establish that premature deliberations
actually caused prejudice to obtain a new trial. See
People v. Renaud, 942 P.2d 1253, 1257 (Colo.App.
1996); but see Wadle, 97 P.3d at 937
(suggesting an objective test should apply to determinations
of prejudice from juror misconduct).
[¶230] Beyond the general principle
announced in Renaud, appellate courts in Colorado
have only addressed situations in which the trial court
failed to consider pre-deliberation discovered during trial,
People v. Harmon, 284 P.3d 124, 128-29 (Colo.App.
2011), or issued an instruction that allowed
pre-deliberation, see People v. Flockhart,
2013 CO 42, ¶ 15, 304 P.3d 227. Critical to our
analysis, Colorado courts have not addressed the permissible
scope of a trial court's inquiry into premature
deliberation by the jury that is discovered postverdict.
[¶231] Therefore, we turn to federal
authority to guide our analysis. See
Stewart, 47 P.3d at 321 ( Because CRE 606 is
substantially similar to its federal counterpart, " we
may look to the federal authority for guidance in construing
our rule." ).
[¶232] Federal courts draw a line between
" internal" and " external" influences on
a jury. See Tanner v. United States, 483
U.S. 107, 117-18, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987).
" Although premature discussions among jurors may
prejudice the defendant, . . . intrajury misconduct generally
has been regarded as less serious than extraneous influences
on the jury." United States v. McVeigh, 153
F.3d 1166, 1186 (10th Cir. 1998) (collecting cases),
disapproved of on other grounds by Hooks v.
Ward, 184 F.3d 1206, 1226 (10th Cir. 1999).
[¶233] Accordingly, the interest in "
[p]reserving the finality of jury verdicts militates strongly
in favor of barring post-trial juror assertions of
pre-deliberation discussion." United States v.
Williams-Davis, 90 F.3d 490, 505, 319 U.S.App.D.C. 267
(D.C. Cir. 1996); see also United States v.
Gigante, 53 F.Supp.2d 274, 278 (E.D.N.Y. 1999) (denying
motion to interview jurors despite testimony that indicated
the jurors had discussed the merits of the case during
trial); United States v. Piccarreto, 718 F.Supp.
1088, 1092 (W.D.N.Y. 1989) (" [E]ven if
[pre-deliberation] conversations on the merits occurred, it
would be improper under Rule 606(b) to engage in extensive
inquiry as to how these comments affected the jurors during
[¶234] However, Rule 606(b) does not
completely preclude review of the statements made by jurors
during premature deliberations. See United
States v. Farmer, 717 F.3d 559, 565 (7th Cir. 2013). And
" [p]robing such premature discussions is neither
impermissible nor impossible." United States v.
Jadlowe, 628 F.3d 1, 20 (1st Cir. 2010).
[¶235] In Farmer, the court
addressed a situation in which " jurors engaged in
premature deliberation or made pre-deliberation statements
indicating they had already made up their minds" as to
the defendant's guilt. 717 F.3d at 565. The court
reasoned that, under Rule 606(b), a district court may not
consider " whether and how such statements . . .
affected actual deliberations and verdicts," but may
consider " evidence of the statements or conduct"
in determining whether the defendant was prejudiced.
[¶236] Thus, " the court must ignore
any evidence about the supposed actual effects of the
statements or conduct . . . and must rely instead on
precedent, experience, and common sense to gauge whether the
statements or conduct" were prejudicial. Id.
[¶237] In determining whether the statements
or conduct were prejudicial, " [t]he important thing is
not that jurors keep silent with each other about the case
but that each juror keep an open mind until the case has been
submitted to the jury." United States v. Klee,
494 F.2d 394, 396 (9th Cir. 1974); see also
United States v. Martinez, 547 Fed.Appx. 559, 562
(5th Cir. 2013) (the defendant did not establish an abuse of
discretion where inquiry into jury's pre-deliberations
revealed the discussions were attempts to clarify what they
had heard and did not result in a decision as to guilt).
" The test is whether or not the misconduct has
prejudiced the defendant to the extent that he has not
received a fair trial." Klee, 494 F.2d at 396.
[¶238] Federal courts have also noted that
an alternate juror may become an " outsider who
influenced the jury" at the point formal deliberations
begin and the alternate is dismissed. See United
States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990);
see also United States v. Lawrence, 477
F.Supp.2d 864, 874 (S.D. Ohio 2006) (same), vacated in
part, 555 F.3d 254 (6th Cir. 2009). Where there is
evidence that an excused alternate juror has contacted a
deliberating juror, the trial court may inquire into the
interaction to determine whether the alternate exerted an
improper outside influence on the deliberating juror.
See United States v. Prosperi, 201 F.3d
1335, 1340 (11th Cir. 2000).
[¶239] We conclude that this matter must be
remanded for an evidentiary hearing regarding the potential
juror misconduct that occurred in defendant's case.
Defendant has put forth competent evidence, in the form of an
affidavit, which indicates prejudicial extraneous information
may have been before the jury. See
Kendrick, 252 P.3d at 1066 (implying affidavit
contains competent evidence sufficient to warrant an
evidentiary hearing when it alleges that the jury was exposed
to " factual information specific to an issue in the
case introduced from outside the record" ).
[¶240] The affidavit indicates that at least
some of the jurors who ultimately decided defendant's
guilt conducted a type of experiment at the Parkview
Condominiums to determine whether they could tell the color
of various cars that drove past on Speer Boulevard. Such
information, if true, was relevant to the issues at trial
because, while the prosecution presented evidence that
defendant was driving a white Tahoe, a witness testified that
he had seen a green or brown SUV speed down Speer Boulevard
after the shooting. Defendant presented evidence that Daniel
Harris had travelled with friends in a green SUV on the night
of the shooting.
[¶241] Therefore, any information learned by
the jurors as a result of their experiment was extraneous
information that was relevant to the issues in the case and a
hearing is required. See Harlan, 109 P.3d
at 624 ( " [I]nformation that is not properly received
into evidence or included in the court's instructions is
extraneous." ); Destination Travel, Inc., 799
P.2d at 457 (a hearing is warranted where an affidavit
alleges the jury was exposed to extraneous information).
[¶242] In addition, there is evidence that
after dismissal, the alternate juror contacted a deliberating
juror and the two travelled to the deliberating juror's
home. According to the investigator's affidavit, the two
discussed the substance of the deliberations and discussed
what the deliberating juror planned to do. Because the
alternate had been dismissed, that juror may have acted as an
outside influence on the deliberating juror. See
Prosperi, 201 F.3d at 1340. And inquiry into such an
influence is permitted under CRE 606(b)(2). See
People v. Rudnick, 878 P.2d 16, 21 (Colo.App. 1993)
( " If the alleged misconduct involves . . . coercion .
. . the trial court should conduct a hearing to determine
whether there is a reasonable possibility that the misconduct
affected the verdict to the defendant's detriment."
[¶243] Furthermore, the affidavit permits
the inference that the jurors may have prematurely decided
the guilt of defendant. We agree that the cases requiring
inquiry into the possibility of premature juror
deliberations, discovered postverdict, are extremely rare.
See Williams-Davis, 90 F.3d at 505 (and
cases cited therein). Because, however, this case involves a
situation in which the jury may have both been exposed to
extraneous information and prematurely decided the issue of
defendant's guilt, we conclude that this case is one that
does require such inquiry. Cf. id. ( "
'[W]hen there are premature deliberations among jurors
with no allegations of external influence on the jury, the
proper process for jury decisionmaking has been violated, but
there is no reason to doubt that the jury based its ultimate
decision only on evidence formally presented at
trial.'" (quoting United States v. Resko, 3
F.3d 684, 690 (3d Cir. 1993))).
[¶244] We are particularly concerned that
the same jurors who may have conducted the extraneous
experiment may also have been voting on the guilt or
innocence of defendant on a daily basis throughout the trial.
It is clear that a court may not inquire as to the actual
effect of any pre-deliberations under CRE 606(b). And we
agree that the mere fact that pre-deliberations occurred is
likely insufficient to establish prejudice. Cf.
Williams-Davis, 90 F.3d at 504 (" [E]ven if
Rule 606(b) does not actually bar receipt of evidence of
pre-deliberation discussions, a trial court is virtually
automatically justified in declining to pursue such an
[¶245] However, we are also persuaded that a
court should be able to assess the timing, frequency, and
substance of these types of discussions when it decides
whether a defendant has received a fair trial. See
Farmer, 717 F.3d at 565; Jadlowe, 628 F.3d
at 20-21 (it is permissible for a court to inquire whether
premature deliberations took place and, if so, the number of
jurors involved, the content of the discussion, and the
frequency and timing of the discussions).
[¶246] Because the trial court did not make
any findings with respect to its decision to deny
defendant's motion for a new trial, remand is required.
While defendant has set forth sufficient factual information
to trigger concern regarding his right to a fair trial, he
has not proven extraneous information was " in fact
communicated" to one or more of the jurors.
Destination Travel, Inc., 799 P.2d at 456 (citing
Wiser, 732 P.2d at 1143). And the trial court has
not made the necessary findings to determine whether
defendant was objectively prejudiced by the jury's
actions, if they occurred. Cf. Butters v.
Wann, 147 Colo. 352, 356, 363 P.2d 494, 496-97 (1961) (
To determine whether a new trial is required the trial court
must " hear the facts of the alleged misconduct and . .
. determine as a matter of law the effect reasonably
calculated to be produced upon the minds of the jury by such
[¶247] The court on remand should inquire as
to whether misconduct actually occurred, whether information
obtained by the jurors participating in the misconduct was
disseminated to other jurors, and, if so, whether that
information reached the jury before it came to a unanimous
verdict. See Jadlowe, 628 F.3d at 20-21;
Harlan, 109 P.3d at 626. If the trial court
factually concludes that the jury considered improper
information, it must decide whether the " information
posed a reasonable possibility of prejudice to"
defendant. Holt, 266 P.3d at 447.
[¶248] We reverse the trial court's
ruling denying defendant's motion for a new trial and
remand for an evidentiary hearing on the issue of juror
misconduct. If misconduct occurred and there is a reasonable
possibility that defendant was prejudiced by it, the court
shall order a new trial. If not, the judgment of conviction
remains affirmed, subject to defendant's right to appeal
GRAHAM and JUDGE VOGT concur.
[*]Sitting by assignment of the Chief Justice
under provisions of Colo. Const. art.VI, § 5(3), and
§ 24-51-1105, C.R.S. 2014.