to the Colorado Court of Appeals Court of Appeals Case No.
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
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."
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.
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.
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.
Facts and Procedural History
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
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
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."
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.
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 ...