Paso County District Court No. 15CR6162 Honorable Richard
Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Parker, Alternate Defense Counsel, Denver, Colorado, for
J., concurs Nieto [*], J., specially concurs
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
• 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.
possible prejudice from admitting firearms into evidence has
not been addressed in Colorado.
2 We affirm.
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.
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
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.
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 ¶
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.
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
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
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
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
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
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
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. 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 ...