Boulder County District Court No. 13CR1829 Honorable Andrew
R. Macdonald, Judge
Cynthia H. Coffman, Attorney General, Brittany Limes,
Assistant Attorney General, Denver, Colorado, for
Plaintiff-Appellee
Haddon, Morgan and Foreman, P.C., Adam Mueller, Denver,
Colorado, for Defendant-Appellant
OPINION
RICHMAN JUDGE.
¶
1 Defendant, Abel Lujan, appeals the judgment of conviction
entered on a jury verdict finding him guilty of second degree
murder. Because the trial court erroneously ordered the
courtroom to be completely cleared when it reread
instructions to the jury during deliberations, over
defendant's objection, we must reverse and remand for a
new trial.
I.
Background
¶
2 The victim, defendant's live-in girlfriend, was beaten,
strangled, and left on the ground outside a friend's
apartment in 1999. In 2013, the People charged defendant with
first degree murder. On the first day of trial, defendant
conceded that he was responsible for the victim's death,
but he argued that he was guilty only of reckless
manslaughter.
¶
3 Over defendant's objection that the evidence violated
CRE 404(b), defendant's ex-wife and a former girlfriend
testified about defendant's behavior toward them,
including that he had hit and tried to strangle or suffocate
them. For each witness's testimony, the trial court gave
a contemporaneous limiting instruction. However, at the close
of evidence, the jury was instructed only generally that
"[t]he Court admitted certain evidence for a limited
purpose. You are instructed that you cannot consider that
evidence except for the limited purpose I told you about when
it was admitted."
¶
4 During deliberations, the jury submitted two questions to
the trial court, one of which said: "Please write down
the statement for the limited use statement [sic] on the
testimonies of [defendant's ex-wife and former
girlfriend]." Defense counsel objected to sending a
written version of the contemporaneous instructions to the
jury room if it did not contain additional language
explicitly stating that the jury could not use the
testimonies as evidence of propensity - language that the
trial court had already rejected. The prosecutor suggested
that the jury be brought back to the courtroom, where the
judge could read the written version of the contemporaneous
instructions. After a lengthy discussion, the court gave
defense counsel a choice between (1) sending the jury a
written version of the limiting instructions given
contemporaneously with the testimony and (2) clearing the
courtroom while it reread the contemporaneous limiting
instructions aloud to the jury. Counsel indicated that he
preferred reading the instructions to the jury, but he
objected to excluding everyone from the courtroom. The court
responded that it could "never bring the jury out in
front of the parties" during deliberations and that
counsel did not have to worry about it because the proceeding
would be on the record.
¶
5 Ultimately, defense counsel asked the court to read the
instructions aloud and to note that "we are not in the
courtroom, . . . and we are allowed to be." Counsel also
requested that the jury be told why the parties were not
present, and the judge responded "of course."
¶
6 With the courtroom empty except for the jury, the bailiff,
and the court reporter, the trial court said, "All
right. Good morning, ladies and gentlemen. I'm going to
read to you the instructions I read contemporaneous[ly] with
the testimony of [defendant's ex-girlfriend and his
ex-wife]." Then the court reread the instructions
directing that the testimony from each witness could be
considered only to show motive, intent, or common plan.
Finally, it said, "That - those are the instructions.
Okay. So thank you."
¶
7 The jury found defendant guilty of second degree (knowing)
murder.
¶
8 On appeal, defendant contends that this conviction must be
reversed because (1) closure of the courtroom to read
limiting instructions violated his right to a public trial
and his right to be present and (2) the trial court made
three erroneous evidentiary decisions. We agree with
defendant's contention regarding a public trial and,
because we conclude that the error is structural, we do not
address his contention that his right to be present was
violated, as a violation of that right is not structural
error. However, we address his evidentiary contentions
because they might arise on remand.
II.
Public Trial
¶
9 A criminal defendant's right to a public trial is
guaranteed by both the United States and Colorado
Constitutions. U.S. Const. amends. VI, XIV; Colo. Const. art.
II, § 16. When the trial court erroneously deprives a
defendant of this right, the error is structural and
"require[s] automatic reversal without individualized
analysis of how the error impairs the reliability of the
judgment of conviction." Hagos v. People, 2012
CO 63, ¶ 10; see Stackhouse v. People, 2015 CO
48, ¶ 7. A violation of the right to a public trial is
not amenable to a harmless error analysis because "the
effects of the error are simply too hard to measure."
Weaver v. Massachusetts, 582 U.S.___, ___, 137 S.Ct.
1899, 1908 (2017); see Waller v. ...