County District Court No. 12CR777 Honorable Valerie J.
Cynthia H. Coffman, Attorney General, Lisa K. Michaels,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Britta
Kruse, Deputy State Public Defender, Denver, Colorado, for
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.
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.
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. 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
Whether the Trial Court Committed Constitutional Error in
Precluding Cross-Examination of the Victim About Having Been
Under the Influence of Methamphetamine
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.
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.
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
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
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
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. ...