County District Court No. 12CR1974 Honorable Christie A.
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Audrey E.
Bianco, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Corey Anthony Lopez, appeals the trial
court's judgment of conviction entered on jury verdicts
finding him guilty of one count each of first degree murder -
after deliberation; attempted first degree murder - after
deliberation; reckless endangerment; and third degree
assault. We affirm.
2 In 2012, defendant's girlfriend, R.B., was at a bar
drinking with her mother, brother, and a friend. At some
point, defendant joined them.
3 Later in the evening, the group left the bar and continued
drinking at R.B.'s friend's home. After some
additional drinking, defendant told R.B. that he wanted to go
home because he had to get up early for work the next day.
However, R.B. told defendant she did not want to leave, and
the two began arguing. Eventually, R.B. left her friend's
house, got into her brother's car, and asked him to take
her home. As defendant attempted to convince R.B. to come
home with him, R.B.'s friend intervened, asking defendant
to stop bothering R.B. At that point, defendant began arguing
with R.B.'s friend and, as the argument escalated,
defendant became so angry that he punched out his car window.
R.B. then exited her brother's vehicle and left the scene
4 The police responded to a noise complaint at R.B.'s
friend's house soon thereafter. After the police left,
R.B.'s mother and brother headed home, and defendant
5 When the group arrived at the home, R.B. was asleep on the
couch. At approximately 5 a.m., defendant and R.B. traveled
to defendant's apartment. Later that afternoon, defendant
called 911 to report that R.B. was not breathing. When the
police and paramedics arrived, R.B. was dead.
6 In interviews with the police, defendant claimed that he
and R.B. had had consensual "make-up" sex, and, at
some point, he was behind R.B. with his arms draped over and
around her shoulders. He said that after they were done, he
cuddled with R.B. and went to sleep. In explaining why R.B.
was fully clothed when the police and paramedics arrived, he
said that he and R.B. had both worn their underwear during
sex and that he did not want anyone to see R.B. in her
7 As the police waited on R.B.'s autopsy reports, they
were contacted by defendant's ex-girlfriend, S.E. S.E.
told the police that based on her experience dating
defendant, she believed defendant may have strangled R.B. Her
belief was based on an incident in 2008 when, according to
S.E., defendant nearly strangled her to death during an
argument, only to be saved by a friend who had forced her way
into S.E. and defendant's bedroom.
8 The autopsy report later showed that R.B. had died of
9 The district attorney subsequently charged defendant with
first degree murder - after deliberation as to R.B. and
attempted first degree murder - after deliberation as to S.E.
At the end of trial, at defendant's request, the court
also instructed the jury on the lesser nonincluded offenses
of reckless endangerment and third degree assault as to S.E.
The jury convicted defendant of (1) first degree murder -
after deliberation as to R.B.; (2) attempted first degree
murder - after deliberation as to S.E.; and (3) the lesser
10 Defendant first contends that the trial court erred when
it allowed R.B.'s mother and brother, who were witnesses
for the prosecution, to be present during testimony at
defendant's preliminary hearing and trial. We are not
Standard of Review and Applicable Law
11 Decisions related to the sequestration of witnesses are
reviewed for an abuse of discretion. See People v.
Cohn, 160 P.3d 336, 346 (Colo.App. 2007).
12 Absent limited exceptions not relevant here, CRE 615
provides that upon the request of a party, the trial court
shall order the exclusion of witnesses from the courtroom
"so that they cannot hear the testimony of other
witnesses." "The purpose of a sequestration order
is to 'prevent a witness from conforming his [or her]
testimony to that of other witnesses and to discourage
fabrication and collusion.'" People v.
Villalobos, 159 P.3d 624, 629 (Colo.App. 2006)
(alteration in original) (citations omitted).
13 However, article II, section 16a of the Colorado
Constitution provides that "surviving immediate family
members . . . shall have the right to be heard when relevant,
informed, and present at all critical stages of the criminal
justice process." The legislature has codified this
right in part 3 of title 24, article 4.1 (the Victims'
Rights Act), and section 24-4.1-302.5(1)(b), C.R.S. 2016,
states that victims have "[t]he right to be informed of
and present for all critical stages of the criminal justice
process as specified in section 24-4.1-302(2)." See
also People v. Coney, 98 P.3d 930, 935 (Colo.App. 2004).
As relevant here, section 24-4.1-302(2), C.R.S. 2016, defines
"critical stages" to include preliminary hearings
and the defendant's trial.
14 Although "CRE 615 does not provide authority for
departing from the constitution and statute, "
Coney, 98 P.3d at 935, section 24-4.1-303(6)(a),
C.R.S. 2016, states that "[a] victim . . . may be
present at all critical stages of a criminal proceeding
regarding any crime against such victim unless the
court or the district attorney determines that
exclusion of the victim is necessary to protect the
defendant's right to a fair trial." (Emphasis
15 Based on our review of the record, we discern no abuse of
discretion by the trial court in allowing R.B.'s mother
and brother to be present during testimony at defendant's
preliminary hearing and trial.
16 Initially, we note that R.B.'s mother and brother are
both included in the statutory definition of a
"victim" under the Victims' Rights Act. §
24-4.1-302(5). And because the Victims' Rights Act
represents a decision on a matter of public policy - here,
that R.B.'s mother and brother have a right to be present
during the trial of her accused killer - the statute controls
over CRE 615. See People v. Wiedemer, 852 P.2d 424,
436 (Colo. 1993) ("In drawing the distinction between
substance and procedure, we have held that in general, rules
adopted to permit the courts to function and function
efficiently are procedural whereas matters of public policy
are substantive and are therefore appropriate subjects for
legislation."); see also People v. McKenna, 196
Colo. 367, 372-73, 585 P.2d 275, 278-79 (1978) (on
substantive matters, a statute controls over a rule
promulgated by the court); Coney, 98 P.3d at 935.
17 Nonetheless, as defendant points out, section
24-4.1-303(6)(a) provides a trial court with authority to
exclude a deceased victim's family members if it
"determines that exclusion . . . is necessary to protect
the defendant's right to a fair trial." However,
while defendant is correct that the court had authority to
exclude R.B.'s mother and brother, the trial court
determined that such exclusion was not necessary in
this case. And based on the reasons given by defense counsel
for the need to exclude the witnesses, we discern no abuse of
discretion by the trial court in reaching that decision.
18 At the preliminary hearing, defense counsel contended that
R.B.'s mother and brother should have been excluded from
the courtroom because they were not collateral witnesses and
because "we'll probably learn through the course of
th[e] hearing through the D.A. investigator . . . that there
ha[d] been a lot of rumors and information being exchanged
between various witnesses." The prosecutor responded
that she did not "know what [defense counsel] [wa]s
referencing in that last portion" and asked that
R.B.'s mother and brother be allowed to remain in the
courtroom for the preliminary hearing. Because the family
members were not scheduled to testify at the hearing, and in
light of "the mandate contained in the Constitution
permitting the family to remain in the courtroom, " the
court, relying on Coney, allowed R.B.'s family
19 The court and the parties revisited the issue at trial.
Citing Coney for the proposition that victims have a
right to be present during trial, the court asked defense
counsel, "And I guess what I don't know from the
defense is, what is your specific objection if they are here?
I'm assuming there are police reports. But did you have a
specific objection or is there an order that we can do?"
The following colloquy then occurred:
[Defense counsel:] Your Honor, I just - Your Honor, I am just
concerned about witnesses, any witnesses watching testimony
of other witnesses and discussing ...