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People v. Lujan

Court of Appeals of Colorado, Third Division

July 12, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Abel Lujan, Defendant-Appellant.

          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


          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. ...

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