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People v. Dunham

Court of Appeals of Colorado, Third Division

May 19, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Kevin Earl Dunham, Defendant-Appellant.

         Mesa County District Court No. 12CR777 Honorable Valerie J. Robison, Judge

          Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          WEBB JUDGE

         ¶ 1 A jury convicted Kevin Earl Dunham of attempted second degree murder and first degree assault. He raised, and the jury was instructed on, self-defense. On appeal, he contends only that the trial court erred in prohibiting his attorney from cross-examining the victim about having been under the influence of methamphetamine on the night of the shooting that gave rise to the charges.

         ¶ 2 The constitutionality of such a limitation has not been addressed in Colorado. But cases from other jurisdictions and secondary authorities recognize that because some drugs may affect a witness's ability to perceive, whether the witness was under the influence of drugs is generally a proper subject of cross-examination.

         ¶ 3 In this case, because the evidence afforded a good faith basis to inquire into the victim's drug use, we conclude that the trial court erred in limiting cross-examination. Given the importance of the victim's testimony to the self-defense theory, we also conclude that this error violated defendant's constitutional right of confrontation. Finally, because after discounting the victim's testimony, the physical and other evidence would not have prevented a reasonable jury from concluding that the prosecution had failed to disprove self-defense, we further conclude that the error was not harmless beyond a reasonable doubt. Therefore, we reverse and remand for a new trial.

         I. Introduction

         ¶ 4 According to the prosecution's evidence, the victim went to a friend's apartment on July 7, 2012, and stayed for several hours. At about 2 a.m. on July 8, the victim decided to go home. The friend and the victim left together, so that the friend could drive the victim home.

         ¶ 5 The victim and his friend confronted or were confronted by several people in the apartment complex parking lot. Many details of what happened next were disputed. By some accounts, the victim was belligerent and threatening; during at least part of the confrontation, he was holding a knife. Defendant joined the confrontation and pointed a gun at the victim and the victim's friend. After defendant shot into the air, the group dispersed. Defendant left the area, on foot and alone.

         ¶ 6 The victim testified that he went back into his friend's apartment for a few minutes and then left the area, also on foot and alone, but walking in a different direction than defendant. But their paths crossed at a nearby intersection. Defendant fired several shots at the victim. Two or three bullets struck him.

         ¶ 7 A police officer quickly responded to the scene. He found the victim lying face down in the gutter with his head pointing in the direction opposite of where two shell casings were found, about 150 feet away.[1]

         ¶ 8 The only two witnesses to the shooting - other than the victim and defendant - saw a man fire several shots and then run from the area where the shell casings were found.[2] These witnesses could not identify the shooter and apparently did not see at whom he was shooting. Another witness testified that she did not hear any shouting or threats before the gunman opened fire.

         ¶ 9 The prosecution charged defendant with attempted first degree murder (after deliberation), attempted second degree murder, first degree assault, and a crime of violence sentence enhancer. Defendant conceded that he had shot the victim but claimed that he had done so in self-defense. He did not testify, instead basing his self-defense theory on telephone calls from jail to his mother. The prosecution played recordings of these calls during its case in chief, apparently to prove identity.

         ¶ 10 The jury found defendant not guilty of attempted first degree murder but guilty of the other charges, including the sentence enhancer.

         II. Whether the Trial Court Committed Constitutional Error in Precluding Cross-Examination of the Victim About Having Been Under the Influence of Methamphetamine

         A. Preservation and Standard of Review

         ¶ 11 The Attorney General argues that we should not consider this issue because defense counsel abandoned it by declining the trial court's offers to question the victim and officer outside the jury's presence. To the contrary, defense counsel made her position clear and argued it thoroughly several times. The trial court understood the defense's position and ruled definitively several times. Thus, the issue was preserved. People v. Jacobson, 2014 COA 149, ¶ 8 ("A defendant preserves an issue when the defendant timely requested relief at the trial on the same ground raised on appeal.") (cert. granted Nov. 2, 2015).

         ¶ 12 By objecting to the trial court's proposal to question witnesses outside of the jury's presence, defense counsel did not abandon her position that there was a sufficient evidentiary basis to allow cross-examination of the victim as to his methamphetamine use the night of the shooting. And, as discussed below, counsel's objection to the court's proposed process was well founded.

         ¶ 13 Ordinarily, we review a defendant's preserved contention that the trial court erred in limiting cross-examination of a witness for an abuse of discretion. See People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982); People v. Conyac, 2014 COA 8M, ¶ 91. But where, as in this case, a defendant contends that the trial court so excessively limited his cross-examination of a witness as to violate the Confrontation Clause, see U.S. Const. amend. VI, we review that contention de novo. Bernal v. People, 44 P.3d 184, 198 (Colo. 2002); People v. Carter, 2015 COA 24M, ¶ 28.

         B. Additional Background

         ¶ 14 Following jury selection, the prosecutor asked the court to instruct defense counsel not to ask the victim whether he had used methamphetamine "on the morning of [July] 7th." The prosecutor argued that evidence of methamphetamine use was other act evidence subject to CRE 404(b), of which the defense had failed to give timely notice. He also argued the lack of evidence the victim was under the influence of methamphetamine when he was treated by medical personnel after the shooting, which, as indicated, had occurred during the early morning hours of July 8.

         ¶ 15 Defense counsel responded that a police officer had written in her incident report that she had overheard the victim say to a doctor treating him for his gunshot wounds that he "was under the influence of meth, but not to tell his family." Counsel argued that while this statement was sufficient evidence to ask the victim whether he was under the influence of methamphetamine at the time of the shooting, she did not intend to ask him about past use of methamphetamine "that would not implicate his demeanor or his ability to perceive in this case." The evidence of the victim's use of methamphetamine the night of the shooting was not CRE 404(b) other act evidence, counsel argued, but res gestae evidence that also directly impeached the victim's credibility - specifically, the victim's "ability to perceive."

         ¶ 16 The prosecutor replied that the hospital report only said the victim had admitted to using methamphetamine the morning of July 7, many hours before the shooting, and that no drug had showed up in the victim's "blood work." Defense counsel countered that the victim had been in the hospital for several days and that methamphetamine dissipates from blood "fairly quickly." Counsel explained that she intended to ask the victim on cross-examination whether he had made the statement overheard by the officer, and that if the victim denied making the statement, she would ask the officer about it.[3]

         ¶ 17 The court granted the prosecutor's request. But the court expressed uncertainty about what the victim had said to the officer and whether the victim had said he had used methamphetamine the night of the shooting or the previous morning. It said there appeared to be "a dispute based on medical records, " so counsel would not be allowed to mention the victim's methamphetamine use unless and until the officer testified under oath outside the jury's presence. Defense counsel objected to that procedure, arguing that the jury should determine the officer's credibility. The court was unmoved.

         ¶ 18 The next morning, before opening statements, defense counsel raised the issue again. Counsel said that she had reviewed the medical records, which did not include a "tox screen." The attorneys then focused on statements in the hospital records.

         ¶ 19 The records showed that when asked about recreational drug use, the victim indicated he used methamphetamine. Defense counsel conceded that those statements would not be admissible, but she asked the prosecutor to clarify where in the medical records the victim had said he had used methamphetamine the morning of July 7, as the prosecutor had represented the day before. The prosecutor pointed to a page that said: "Illicit drugs. Check. Meth. This a.m." Defense counsel pointed out that the page was dated July 8 at 4:15 a.m. The prosecutor said "'[t]his a.m.' was referring to July 7th, " but defense counsel responded, "[t]here's no indication in discovery that that's the case." Defense counsel argued that cross-examining the victim as to his use of methamphetamine the night of the shooting was proper because such use could have affected his perception of the events. Counsel tendered the hospital record as part of her offer of proof.

         ¶ 20 The trial court declined to change its prior ruling, explaining, "I do not have enough to indicate that [the victim] was actually under the influence at the time that he gave statements to law enforcement or he would be under the influence when he would be testifying during the trial itself." The court then ruled that evidence of the victim's methamphetamine use was CRE 404(b) evidence as to which the defense had not given timely notice, and that the probative value of the evidence was outweighed by the danger of unfair prejudice.

         ¶ 21 But the matter did not end there. During a break in the victim's direct testimony, defense counsel again tried to change the court's mind. Counsel argued that no discovery had been produced by the prosecution showing that the victim's blood had been screened for methamphetamine while he was in the hospital, and nothing in discovery indicated that the victim had been referring to the morning of July 7, rather than July 8, when he had said he used methamphetamine. Counsel cited People v. Roberts, 37 Colo.App. 490, 553 P.2d 93 (1976), as support for the proposition that evidence of a witness's drug use at the time of the events about which the witness is testifying is admissible.

         ¶ 22 The prosecutor continued to object that the evidence was subject to CRE 404(b). He also asserted that no reasonable person could read the reference to "[t]his a.m." in the medical records as referring to July 8 rather than July 7, and so there was no evidence that the victim was under the influence of methamphetamine at the time of the shooting.

         ¶ 23 After defense counsel responded to the prosecutor's arguments, emphasizing that those arguments went to the weight, not the admissibility, of the evidence, the court reaffirmed its earlier ruling. It said, "I don't know whether [the victim] was under the influence of meth and I don't know whether he was referring to being under the influence of meth" when he made the statement overheard by the officer. The court reiterated that the evidence was subject to CRE 404(b) and "unfairly prejudicial."

         ¶ 24 Then the court proposed questioning the victim outside the jury's presence about whether he had used methamphetamine the night of the shooting. Defense counsel objected, arguing that the evidence was sufficient to justify allowing the jurors to hear about the issue and make their own credibility determinations. The court ultimately ruled that the victim had been referring to using methamphetamine the morning of July 7.[4]

         C. Law

         ¶ 25 "The right of a criminal defendant to confront the witnesses against him . . . is not satisfied simply by having the witnesses physically present in court, but requires that the defendant be given an opportunity for effective cross-examination." Merritt v. People, 842 P.2d 162, 165-66 (Colo. 1992) (citing Davis v. Alaska, 415 U.S. 308, 315-16 (1974)). Even so, the right to cross-examination is not unlimited; the court may limit the scope and duration of cross-examination subject to well-established rules. Id. (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

         ¶ 26 In limiting cross-examination, however, a court goes too far and commits constitutional error if it "limit[s] excessively a defendant's cross-examination of a witness regarding the witness' credibility, especially cross-examination concerning the witness' bias, prejudice, or motive for testifying." Id. at 167; accord Vega v. People, 893 P.2d 107, 118 (Colo. 1995); see also Krutsinger v. People, 219 P.3d 1054, 1061 (Colo. 2009) ("Error in limiting a defendant's ability to challenge the credibility of the evidence against him, either by restricting the cross-examination of prosecution witnesses or by restricting the presentation of defense evidence, implicates 'the basic right to have the prosecutor's case encounter and "survive the crucible of meaningful adversarial testing."'" (quoting Crane v. Kentucky, 476 U.S. 683, 690-91 (1986))).

         ¶ 27 A defendant's constitutional right of confrontation may be violated not only by excessively limiting his efforts to cross-examine a witness about bias, prejudice, or motive to testify, see Merritt, 842 P.2d at 167, but also by excessively limiting his efforts to cross-examine a witness about any matter bearing directly on the witness's credibility. And whether the witness was, at the time of the events as to which he testifies, under the influence of some drug that could have affected his perception of those events bears directly on credibility. E.g., United States v. Robinson, 583 F.3d 1265, 1274-76 (10th Cir. 2009) (considering witness who had been using alcohol, marijuana, opioids, benzodiazepine, Valium, Klonopin, Darvocet, and Hydrocodone); State v. Sabog, 117 P.3d 834, 840-45 (Haw. Ct. App. 2005) (methamphetamine); State v. Carrera, 528 A.2d 331, 333-34 (R.I. ...


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