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People v. Allgier

Court of Appeals of Colorado, Third Division

August 23, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Cameron Douglas Allgier, Defendant-Appellant.

          El Paso County District Court No. 15CR6162 Honorable Richard Hall, Judge

          Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Anne Parker, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

          Fox, J., concurs Nieto [*], J., specially concurs


          WEBB JUDGE

         ¶ 1 A jury convicted Cameron Douglas Allgier of possession of a weapon by a previous offender (POWPO). He seeks a new trial on four grounds:

• the trial court plainly erred in admitting into evidence the three firearms that were the basis for the POWPO charge, in addition to photographs of them;
• the trial court erred in admitting hearsay statements of a witness, which improperly bolstered that witness's testimony;
• the trial court plainly erred in allowing the prosecutor to mischaracterize the evidence and the law during closing argument; and
• the cumulative effect of these errors was prejudicial.

         The possible prejudice from admitting firearms into evidence has not been addressed in Colorado.

         ¶ 2 We affirm.

         I. Background

         ¶ 3 During a burglary, several firearms were stolen. M.S., a suspect in the burglary, told police that he had seen defendant - a previous offender but not one of the burglars - in the back seat of a vehicle next to a box containing some of the stolen firearms. M.S. also said that the firearms might be found at an apartment in Arvada associated with defendant. The police went to the apartment, seized three of the stolen firearms, and arrested defendant.

         II. Any Error in Admitting the Firearms Was Not Plain

         ¶ 4 During the prosecution's case, a police officer identified two photographs depicting the firearms seized from the apartment. When the prosecutor offered these photographs, defense counsel said, "no objection." Then the prosecutor had the officer identify each of the firearms, which the prosecutor separately offered into evidence. Again, as each of the firearms was offered, defense counsel said, "no objection." No colloquy concerning any of these exhibits occurred.

         ¶ 5 Now, defendant argues that because the firearms were unduly prejudicial under CRE 403, the trial court plainly erred in admitting them. We conclude that plain error did not occur.

         A. Waiver

         ¶ 6 In the answer brief, the Attorney General argued that we should not review this contention for plain error because defendant waived it. The Attorney General relied on People v. Rediger, 2015 COA 26, ¶ 59 (Rediger I), aff'd in part and rev'd in part, 2018 CO 32 (Rediger II). There, defense counsel told the trial court that he had read the jury instructions and was "satisfied." Rediger I, ¶ 47. On this basis, the division concluded that instructional error had been waived. Id. at ¶ 64.

         ¶ 7 But the supreme court reversed in part, holding that counsel's colloquy with the court did not show either actual knowledge or intentional relinquishment of the defendant's right to have the jury correctly instructed on the elements of the offense charged in the indictment. Rediger II, ¶ 45. Because the supreme court's decision was announced after briefing had closed in this case, we requested supplemental briefs on waiver.

         ¶ 8 Defendant did not file a supplemental brief.

         ¶ 9 The Attorney General's supplemental brief seeks to distinguish Rediger II as follows:

[T]he waiver issue here does not raise the concern regarding counsel's possible lack of knowledge of the basis for making the relevant objection. Both Defendant and his counsel were clearly aware of the evidence that the prosecution was seeking to admit. Therefore, counsel's statement that he had no objection to the admission of the guns into evidence cannot be attributable to a lack of knowledge of the nature of the evidence or to an oversight. Unlike Rediger's "general acquiescence" to the jury instructions as a whole, here Defendant stated his lack of objection to the admission of a very specific and obvious evidence.

         But this attempted distinction assumes something that Rediger II does not say - exactly what "known" means in evaluating whether defense counsel intentionally relinquished a known right. ¶ 39. Nor have we found such a definition in any Colorado case considering waiver by counsel in the criminal context.

         ¶ 10 When the prosecution offers evidence and defense counsel responds "no objection," six explanations are possible.[1]

         •Defense counsel was uninformed of the legal basis for an objection.

         • Defense counsel knew of the legal basis for an objection, but did not recognize the factual basis for an objection.

         • Defense counsel knew of both, but failed to connect them.

         • Defense counsel was aware of both, but concluded that preserving an objection would be meritless.

         • Defense counsel was aware of both, but concluded that admission of the evidence could be of strategic benefit to the defendant.

         • Defense counsel was aware of both, but concluded that declining to object could sow the seeds for appellate reversal under the plain error standard, in the event of a conviction.

         ¶ 11 Where subject to any of the first three explanations, "no objection" will never constitute a waiver under Rediger II. The fourth, fifth, or sixth explanations could get over this hurdle, but often the record will not be adequately informative.

         ¶ 12 As to the first and second explanations, in some cases defense counsel might embellish "no objection" with words indicating awareness of the legal or factual basis for an objection. See People v. Tee, 2018 COA 84, ¶ 37 ("Opposite to what occurred in Rediger II, here the dialogue between defense counsel and the trial court over this issue went far beyond a 'rote statement that [counsel] is not objecting . . . .'" (quoting United States v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir. 2008))); see also People v. Kessler, 2018 COA 60, ¶ 35 (The court declined to apply Rediger II where "defense counsel took the position that the tests were admissible and that the only question was the weight to be given them."). But here, counsel said only "no objection" when each firearm was offered.

         ¶ 13 As to the third explanation, even absent such a statement, our supreme court presumes counsel has some level of legal acumen. See Stackhouse v. People, 2015 CO 48, ¶ 16 ("'[W]e presume that attorneys know the applicable rules of procedure,' and we thus 'can infer from the failure to comply with the procedural requirements that the attorney made a decision not to exercise the right at issue.'") (citation omitted). As well, the record may compel the conclusion that counsel must have been aware of the factual basis for an objection. See id. at ¶ 16 ("Allowing a defense attorney who stands silent during a known closure to then seek invalidation of an adverse verdict on that basis would encourage gamesmanship . . . .").

         ¶ 14 So, is the courtroom closure in Stackhouse, which was found to have been waived based only on defense counsel's failure to object, different from a routine evidentiary question? Although Rediger II did not cite Stackhouse, we conclude that the answer is yes, for three reasons.

         ¶ 15 First, an unwarranted courtroom closure is structural error, while improper admission of evidence is trial error. Compare Stackhouse, ¶ 7 ("Such a violation is structural error that requires automatic reversal without individualized prejudice analysis."), with People v. Summitt, 132 P.3d 320, 327 (Colo. 2006) (subjecting "evidentiary trial error" to "harmless error analysis"). The magnitude of the error supports the presumption in Stackhouse that counsel must have known of the proper legal procedure. ¶ 16.

         ¶ 16 Second, and because of the structural error dimension, a complete courtroom closure, as in Stackhouse, rarely occurs. In contrast, the offer of physical evidence that represents the fruit or instrumentality of the crime, sometimes referred to as the "corpus delicti" - such as the firearms in this case, or drugs or stolen property in other cases - is routine, even if cumulative of other evidence or testimony. See State v. Smith, 181 So.3d 111, 116 (La. Ct. App. 2015) ("Fruits and physical evidence of a crime as well as weapons used to commit a crime are relevant to show the commission of such crime and are therefore generally admissible at trial."). The infrequency of complete courtroom closures supports the presumption in Stackhouse that counsel could not have overlooked what was happening.

         ¶ 17 Third, a courtroom closure requires specific findings, even absent any objection by the parties. See People v. Hassen, 2015 CO 49, ¶ 9 ("[T]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials" and "must make findings adequate to support the closure." (first quoting Presley v. Georgia, 558 U.S. 209, 215 (2010) (per curiam); then quoting Waller v. Georgia, 467 U.S. 39, 45 (2015))). But the trial court need not make findings before admitting fruit or instrumentality evidence. And the absence of any specific findings when the prosecutor offered the firearms into evidence could have lulled defense counsel into making a rote "no objection" response.

         ¶ 18 These three observations show that the waiver analysis in Stackhouse involved a two-step process - the legal requirement of a public trial, subject to very limited exceptions, and a courtroom closure. But the waiver analysis in Rediger II involved a three-step process - the legal requirement that the elemental instruction track the charged offense, the elemental instruction that did not satisfy this requirement, and defense counsel's actual recognition of the deficiency in the instruction. Still, declining to follow Rediger II here based on Stackhouse does not end the inquiry. So, we take up the fourth, fifth, and sixth explanations for why counsel might have foregone an objection.

         ¶ 19 As to the fourth explanation - choosing not to make a meritless objection - "counsel's failure to argue the issues in summation or to object to the patent omission in the charge implies that the issues in question were not thought worth contesting; and to reverse on this ground would enhance the opportunities for 'sandbagging' the district judge." United States v. Whiting, 28 F.3d 1296, 1309-10 (1st Cir. 1994). To be sure, "[t]he sixth amendment right to effective assistance of counsel does not require counsel to raise every objection without regard to its merits." Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir. 1984). Still, the record would rarely explain that counsel - despite actual recognition - chose not to raise an objection because it was meritless.

         ¶ 20 An appellate court could infer such a conscious choice only by examining the evidence and concluding that any objection would not have had any obvious purpose. Because at that point the waiver inquiry would be the converse of the plain error inquiry mandated by Rediger II, ¶ 48 ("An error is plain if it is obvious . . . ."), we discern no judicial economy in undertaking it.

         ¶ 21 Turning to the fifth explanation, the record could support the inference of a strategic calculation to benefit the defense based on defense counsel's later use of the evidence. See United States v. Smith, 531 F.3d 1261, 1267 (10th Cir. 2008) (finding waiver where counsel not only represented that he had no objection to the admission of certain evidence but also relied on the evidence); People v. Bondsteel, 2015 COA 165, ¶ 130 ("We decline to review the [DNA] match statements for plain error because . . . the record creates a strong inference that defense counsel did not object to these statements as a matter of strategy rather than due to inadvertence.") (cert. granted Oct. 31, 2016). But here, defense counsel did not seek to obtain any benefits from the firearms. Nor, for that matter, do we see how counsel could have done so.

         ¶ 22 Finally, as to the sixth explanation, the possibility that defense counsel did not object "because [counsel] perceives some slightly expanded chance to argue for 'plain error' later," Henderson v. United States, 568 U.S. 266, 276 (2013) (emphasis in original), is most troublesome yet hardest to discern. True, "plain error review provides a strategic hedge against potentially risky litigation decisions, and encourages defense counsel not to object to inadmissible evidence - at least at the margins." United States v. Smith, 459 F.3d 1276, 1302-03 (11th Cir. 2006) (Tjoflat, J., specially concurring). But despite extensive recognition by both state and federal courts of the sandbagging problem, we have not found a test for detecting it as a basis for finding a waiver.

         ¶ 23 Of course, an appellate court would be justifiably suspicious of sandbagging if the objection was obviously meritorious, admission of the evidence would clearly prejudice the defendant, and defense counsel was experienced. But because "appellate courts are poorly situated to discern litigation strategy," id., drawing the sandbagging inference on direct appeal would be speculative.[2] And in any event, the "limited scope of [plain error] review discourages a defense counsel from sandbagging a district judge by holding in his pocket a legal argument." United States v. Redrick, 841 F.3d 478, 481 (D.C. Cir. 2016). As well, in the heat of battle, even the best lawyers simply make mistakes. See People v. Weathers, 338 N.E.2d ...

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