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People v. Elmarr

Supreme Court of Colorado, En Banc

June 29, 2015

In Re The People of the State of Colorado, Plaintiff:
Kevin F. Elmarr, Sr., Defendant:

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[Copyrighted Material Omitted]

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Original Proceeding Pursuant to C.A.R. 21 . Boulder County District Court Case No. 07CR388. Honorable Patrick Butler, Judge.

Rule Made Absolute.


In this case, the supreme court sets forth the proper framework for analyzing the 14 admissibility of alternate suspect evidence. The court holds that the admissibility of 15 such evidence ultimately depends on the strength of the connection between the 16 alternate suspect and the charged crime. The touchstone of relevance in this context is 17 whether the evidence establishes a non-speculative connection or nexus between the 18 alternate suspect and the crime charged. Where the evidence concerns other acts by the 19 alternate suspect, a court must look to whether all the similar acts and circumstances, 20 taken together, support a finding that the same person probably was involved in both 21 the other act and the charged crime. CRE 404(b) principles guide this analysis. In 22 addition, where the evidence concerns statements by the alternate suspect, a court must 23 determine whether the alternate suspect's statements meet the requirements of CRE 804(b)(3) or any other applicable hearsay exception. Finally, even relevant alternate 25 suspect evidence may be excluded if its probative value is substantially outweighed by 26 countervailing policy considerations under CRE 403, such as the danger of confusion of 27 the issues or misleading the jury, or by considerations of undue delay.

For Plaintiff: Stanley L. Garnett, District Attorney, Twentieth Judicial District, Sean P. Finn, Chief Appellate Deputy District Attorney, Nicole Mor, Appellate Deputy District Attorney, Boulder, Colorado.

For Defendant: Douglas K. Wilson, Public Defender, Nicole Collins, Deputy Public Defender, Kristin Johnson, Deputy Public Defender, Boulder, Colorado.



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[¶1] In this original proceeding pursuant to C.A.R. 21 , we consider the trial court's determination regarding the admissibility of alternate suspect evidence offered by the defendant, Kevin F. Elmarr. In 2009, a jury found Elmarr guilty of first degree murder after deliberation for strangling his ex-wife. In an unpublished decision, the court of appeals

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reversed Elmarr's conviction and remanded for a new trial, concluding that the trial court erred by excluding evidence of two alternate suspects. People v. Elmarr, No. 09CA2462, (Colo. App. Feb. 14, 2013). Before the new trial, the People moved to exclude evidence of similar acts by one of those alternate suspects, as well as out-of-court statements made by that alternate suspect implicating himself in both the other similar acts and the charged crime. Following a motions hearing, the trial court, relying largely on the court of appeals' decision remanding the case, denied the People's motion to exclude the other acts evidence and the out-of-court statements.

[¶2] The People now petition this court for relief under C.A.R. 21, arguing that the trial court failed on remand to conduct the proper analysis to determine the admissibility of the alternate suspect evidence--in particular, evidence of other similar acts committed by the alternate suspect and statements made by the alternate suspect to law enforcement. The People contend that this area of the law has generated considerable confusion and ask this court to clarify the proper framework for examining the admissibility of such evidence.

[¶3] We agree with the People that the trial court failed to conduct the proper analysis and thus make absolute our rule to show cause. The trial court understood the court of appeals' decision remanding the case to require admission of the alternate suspect evidence. We conclude, however, that the court of appeals, relying on People v. Muniz, 190 P.3d 774 (Colo. App. 2008), applied an incorrect framework for analyzing the admissibility of alternate suspect evidence. We set forth the proper framework below and remand this case to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

[¶4] On May 23, 1987, hikers discovered the body of Carol Murphy near a campsite in Boulder County's Lefthand Canyon. Murphy had been killed by ligature strangulation, her throat had been cut, and branches and foliage had been placed over her body. The day before, Murphy had told several people that she and her " ex" were going to the mountains on his motorcycle for a picnic. That same day, Elmarr, Murphy's ex-husband, told his sister that he and Murphy were going on a picnic in the mountains. Two witnesses identified Elmarr as the man who had accompanied Murphy on the day the prosecution believes she was killed. Nearly twenty years later, on February 1, 2007, the prosecution charged Elmarr with first degree murder for Murphy's death.

[¶5] Before trial, Elmarr notified the court that he intended to introduce evidence pertaining to several alternate suspects. This list included Curtis Murphy, the victim's husband, whom she was in the process of divorcing; William Taylor, the victim's boyfriend; Clifton St. Denis, a homeless man who had been camping near where the victim's body was discovered; Andrew Lloyd, who had previously threatened the victim; Blaine Luzmoor, who had been in a prior romantic relationship with the victim; and an unidentified man named " Billy." The People moved to exclude all alternate suspect evidence. Following a hearing, the trial court issued an order excluding evidence of all alternate suspects.[1] Only the evidence regarding St. Denis is at issue here.

[¶6] Elmarr sought to introduce evidence suggesting that St. Denis murdered the victim. In addition to evidence linking St. Denis to the crime scene, Elmarr sought to introduce statements St. Denis made to detectives purportedly confessing to the murder and evidence of two other crimes committed by St. Denis involving acts of strangulation in the same calendar year as the homicide in this case.

[¶7] St. Denis was considered a suspect in the case for several years. He was camping in the area where the victim's body was found. Detectives interviewed him about a year later while he was confined at a state mental hospital. St. Denis admitted to being in the area when the murder occurred. He described the location where the victim's body was found and stated that a suitcase

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found near the crime scene belonged to him. He also admitted that he usually carried survival knives. St. Denis stated that the night the victim died, he had stabbed a tall, thin man who arrived in the area in a green pickup truck. He also recalled seeing a motorcycle. He stated that someone told him that a woman was killed near where he had stayed that night and that he " coulda" done it because he " got violent that night." He stated that a fight occurred " across the creek." When asked if he killed the victim, he responded " Ye[a]h." He later confessed in the interview that he " believe[d] [he] did that [killed the victim] . . . in a blacked out state."

[¶8] During the interview, St. Denis also made statements about having killed his roommate, Molly Currier, in New York. When asked if the victim in this case " got it the same way that Molly did in New York," he replied, " [Y]e[a]h, in the end . . . that's why I said I think it was me. In the end when I think she was screamin' I had her . . . ." He stated, " I don't know if I stabbed her or not. I don't remember." St. Denis acknowledged being under the influence of drugs when he was interviewed. He later recanted his confession to killing the victim in this case.

[¶9] Currier was found dead in her apartment in February 1987. St. Denis admitted to strangling her and later entered a plea of not guilty by reason of insanity in that case.[2] In December 1987, St. Denis also strangled and threatened his roommate and girlfriend, Holly Lutz, with a knife. He confessed to her attempted murder, and, after he waived a jury ...

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