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People v. Lopez

Court of Appeals of Colorado, Seventh Division

December 15, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Corey Anthony Lopez, Defendant-Appellant.

         Jefferson County District Court No. 12CR1974 Honorable Christie A. Bachmeyer, Judge

         JUDGMENT AFFIRMED

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Audrey E. Bianco, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          BOORAS JUDGE

         ¶ 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.

         I. Background

         ¶ 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 on foot.

         ¶ 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 joined them.

         ¶ 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 underwear.

         ¶ 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 manual strangulation.

         ¶ 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 nonincluded offenses.

         II. Sequestration

         ¶ 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 persuaded.

         A. 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 added.)

         B. Discussion

         ¶ 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 to remain.

         ¶ 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 ...

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