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Pernell v. People

Supreme Court of Colorado, En Banc

February 20, 2018

Christopher Alexander Pernell, Petitioner
v.
The People of the State of Colorado. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 12CA510

          Attorneys for Petitioner: Berg Hill Greenleaf & Ruscitti, LLP Sean James Lacefield Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Melissa D. Allen, Senior Assistant Attorney General Denver, Colorado

          OPINION

          MÁRQUEZ, JUSTICE

         ¶1 A jury convicted Defendant Christopher Pernell of several charges, including burglary, kidnapping, and sexual assault. The prosecution alleged that Pernell showed up at his ex-wife's house uninvited; forced his way into her home; threatened her and her boyfriend at gunpoint; forced her to have sexual intercourse; and prevented her from fleeing. At trial, the prosecution presented multiple witnesses, including the ex-wife, the boyfriend, and a police officer who investigated the incident, as well as corroborating physical evidence. Pernell did not testify or present evidence at trial. His theory of defense was that the ex-wife and the boyfriend fabricated the story of the incident. Consistent with this theory, defense counsel told the jury during opening statements that the incident, as described by the ex-wife and the boyfriend, "didn't happen" and that the ex-wife and the boyfriend "concoct[ed] their story to get [Pernell] out of their lives."

         ¶2 An officer who testified at trial recounted the ex-wife's description of the incident to him. Pernell objected to this testimony, arguing that the ex-wife's out-of-court statements to the officer constituted inadmissible hearsay. The trial court admitted these statements as excited utterances under CRE 803(2). On appeal, Pernell argued, among other things, that the trial court had reversibly erred in admitting the ex-wife's statements.

         ¶3 The court of appeals affirmed the judgment of conviction. People v. Pernell, 2014 COA 157, ___ P.3d ___. As relevant here, the court agreed with Pernell that the trial court erred in admitting the ex-wife's out-of-court statements as exited utterances under CRE 803(2), but concluded that the error did not require reversal because the statements were nonetheless admissible as prior consistent statements to rehabilitate the ex-wife's credibility after Pernell had attacked it. Id. at ¶ 37. In so ruling, the court of appeals reasoned that defense counsel's opening statement that the ex-wife fabricated her story opened the door for the admission of her out-of-court statements. Id. at ¶ 40. We granted Pernell's petition for a writ of certiorari to review whether a defendant's opening statement can open the door to admit otherwise inadmissible evidence. [1]

         ¶4 However, upon review of the trial record, we conclude that any error in the admission of the ex-wife's out-of-court statements was harmless because there is no reasonable possibility that the admission of these statements contributed to Pernell's conviction. Accordingly, we decline to address whether defense counsel's opening statement opened the door to the admission of the ex-wife's out-of-court statements and express no opinion on this issue. We therefore affirm the judgment of the court of appeals, albeit on different grounds.

         I. Facts and Procedural History

         ¶5 The People charged Defendant Christopher Pernell with two counts of second degree kidnapping, one count of sexual assault, one count of first degree burglary, two counts of menacing, one count of violation of a protection order, and three crime-of-violence sentence enhancers. The charges stemmed from an incident on the night of August 1, 2010, involving Pernell, his ex-wife, and the ex-wife's boyfriend. At the time of the incident, Pernell and the ex-wife had divorced, and Pernell was subject to a court-issued protection order prohibiting him from harassing, intimidating, threatening, or molesting the ex-wife, and requiring him to stay at least 100 yards away from her at all times.

         ¶6 According to the prosecution, Pernell showed up at his ex-wife's house uninvited at night. He forced his way into her home, threatened her and her boyfriend at gunpoint, forced her to have sexual intercourse after allowing the boyfriend to leave, and prevented her from fleeing. At trial, the prosecution presented several witnesses, including the ex-wife, the boyfriend, and a police officer who investigated the incident. The prosecution also introduced corroborating physical evidence.

         ¶7 Pernell did not testify or present any evidence at trial. Instead, his counsel argued that although Pernell went to his ex-wife's home, he did not bring a gun; that Pernell had consensual sex with his ex-wife; and that the ex-wife and the boyfriend fabricated the story of the incident. During opening statements, defense counsel stated that the incident, as described by the ex-wife and the boyfriend, "didn't happen" and that the ex-wife and the boyfriend "concoct[ed] their story to get [Pernell] out of their lives."

         ¶8 The prosecution's first trial witness was Officer Todd Gentry, a police officer who spoke with the ex-wife the morning after the incident and who investigated her complaint against Pernell. Officer Gentry testified that when he spoke with the ex-wife, she was "visibly distraught" and "traumatized from the event that had happened 12 hours prior." When asked to explain what he meant by "distraught, " Officer Gentry responded, "she was afraid, really to the point of probably being terrified. Her head was down. Her eyes were down." Officer Gentry testified that the ex-wife told him that Pernell came into her home with a gun; threatened her and the boyfriend at gunpoint; ordered her into the bedroom after allowing the boyfriend to leave; forced her to have sexual intercourse with him; and stopped her from escaping.

         ¶9 Pernell objected to Officer Gentry's testimony regarding the ex-wife's account of the incident, arguing that her statements to the officer were inadmissible hearsay. The trial court overruled the objection, concluding that the ex-wife's statements to Officer Gentry "just barely" qualified as excited utterances admissible pursuant to CRE 803(2) (ostensibly because the officer testified that the ex-wife appeared to be still under the stress of the incident when she made the statements twelve hours later). Defense counsel later moved ...


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