Boulder County District Court No. 14CR437 Honorable Andrew
J. Weiser, Attorney General, Erin K. Grundy, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Mark Evans, Deputy
State Public Defender, Denver, Colorado, for
1 Defendant, Emily Elizabeth Cohen, a formerly licensed
Colorado lawyer, appeals the judgment of conviction entered
on jury verdicts finding her guilty of thirteen counts of
theft. Among the issues we address is whether defendant
opened the door to extensive evidence of the investigations
the Colorado Office of Attorney Regulation Counsel (OARC)
conducted on her, and the results of those investigations. We
conclude that while some evidence of the fact of and basis
for the investigations could come in, much of the evidence
about the investigations, and OARC's findings,
shouldn't have. In so concluding, we reject the
People's argument that defendant opened the door to all
of the admitted evidence, and discuss the limits of the
opening the door doctrine. In the end, we hold that the
district court erred in admitting three OARC complaints
against defendant, and that the error wasn't harmless. We
therefore reverse the judgment of conviction and remand the
case for a new trial.
2 Defendant practiced law in Boulder, specializing in
immigration law. The People charged her with fifty-four
counts of theft, each relating to her alleged mishandling of
client funds. More specifically, the People alleged that
defendant took cash payments up front and then didn't do
the work she had agreed to do, became difficult or impossible
to contact, and didn't provide her clients with refunds.
3 The People ultimately tried defendant on twenty-one of the
charges. The prosecution called over a dozen witnesses,
including several of defendant's former clients, many of
whom testified as to their payments, defendant's failure
to perform services, and their difficulty getting in touch
4 But a significant portion of the eleven-day trial focused
on defendant's ethical obligations under the Colorado
Rules of Professional Conduct (RPC) and her failure to comply
with those obligations. For example, the prosecution
presented evidence that defendant spent client payments
before earning them and often deposited as yet unearned
payments into her personal accounts rather than into her
attorney trust (COLTAF) account. OARC employees testified
concerning attorneys' ethical obligations under the RPC
and that defendant had been under investigation since 2012
for possible ethical violations. The court admitted into
evidence letters that defendant had received from OARC
informing her of the investigation. Over defense
counsel's objections, the court also admitted three of
the complaints that OARC had filed against her. And the
district court allowed another attorney to testify at some
length about her concerns that defendant hadn't behaved
honestly and ethically in a variety of ways, none of which
related to the handling of client funds.
5 The district court instructed the jury on the elements of
theft and gave an instruction containing language from one of
the Rules of Professional Conduct relating to the handling of
client funds. That instruction (Instruction 11) quoted Colo.
RPC 1.15A: "A lawyer shall hold property of clients or
third persons that is in the lawyer's possession in
connection with a representation separate from the
lawyer's own property. Funds shall be kept in trust
accounts[.]" It also included other language, not
directly quoting the RPC, explaining that client funds are
not the attorney's property until the attorney earns them
by "provid[ing] some benefit or service in exchange for
the fee . . . ."
6 After some deliberation, the jurors asked the court whether
they could use the OARC RPC charging decisions to inform
their decision-making; whether the OARC's standard for
verifying the receipt of money by an attorney was the
standard they should apply; whether failure to deposit client
funds into a COLTAF account before earning fees constitutes
"intent to permanently deprive" (one of the
elements of theft); and whether earning fees at a later time
can undo a prior COLTAF violation. The jurors also indicated
that they were deadlocked on at least one charge. Perhaps
without consulting defense counsel (the record isn't
clear whether the attorneys were even in the room; defendant
claims they weren't), and without defendant present, the
court responded to the jurors' questions noted above by
merely telling them they had all the evidence they were to
consider, they should follow the instructions, and these were
issues for them to decide. The court (also apparently without
consulting counsel and outside counsel's and
defendant's presence) also read the jurors a modified
7 The jury continued deliberating and returned guilty
verdicts on thirteen counts. It hung on one and acquitted on
the remaining seven.
8 Defendant contends the district court erred by (1)
admitting the OARC complaints; (2) including the instruction
about an attorney's ethical obligations vis-a-vis earning
fees and handling client funds; (3) allowing another
immigration attorney to respond at length to a juror's
question about defendant's "red flags"; (4)
responding to jurors' questions without consulting with
her counsel and outside her and her counsel's presence;
and (5) giving the jury a modified Allen instruction
without consulting her counsel and outside her and her
counsel's presence. We agree with defendant that reversal
is required based on the court's erroneous admission of
the OARC complaints. We also address the jury instruction
issue because it's likely to arise again on remand.
9 First, defendant contends that the district court erred by
admitting the three OARC complaints into evidence. She argues
that the complaints were inadmissible for a number of
reasons. We conclude that while certain facts pertaining to
the complaints had some relevance to the charges, the
complaints themselves are replete with inadmissible hearsay.
We also conclude that allowing all this hearsay into evidence
violated defendant's Sixth Amendment right to
confrontation, and that, on the whole, the danger of unfair
prejudice, confusion of the issues, and misleading the jury
substantially outweighed the complaints' limited
probative value. Because the error in admitting the totality
of these complaints wasn't harmless, we must reverse
Standard of Review
10 Ordinarily, we review a district court's evidentiary
rulings for an abuse of discretion. Dunlap v.
People, 173 P.3d 1054, 1097 (Colo. 2007); People v.
Clark, 2015 COA 44, ¶ 14. But to the extent such
rulings impact a defendant's rights under the
Confrontation Clause, we review challenges to them de novo.
Bernal v. People, 44 P.3d 184, 198 (Colo. 2002).
11 The People concede that defendant preserved hearsay,
Confrontation Clause, and relevance/undue prejudice
objections to the complaints. So if we conclude that the
court erred in applying the Colorado Rules of Evidence, we
must then reverse unless the People show that the error was
harmless, meaning that there is no reasonable possibility
that it contributed to defendant's convictions.
Pernell v. People, 2018 CO 13, ¶ 22; see
James v. People, 2018 CO 72, ¶ 18. If we conclude
that the court violated defendant's constitutional right
of confrontation, we must reverse unless the People show that
the error was harmless beyond a reasonable doubt.
Nicholls v. People, 2017 CO 71, ¶ 17; Hagos
v. People, 2012 CO 63, ¶ 11.
12 Hearsay - a statement by one other than the declarant
while testifying that is offered to prove the truth of the
matter asserted - is generally inadmissible. CRE 801(c); CRE
802; People v. Phillips, 2012 COA 176, ¶ 61.
Such statements are "presumptively unreliable."
Blecha v. People, 962 P.2d 931, 937 (Colo. 1998).
But a statement isn't hearsay if it's offered for a
purpose other than to prove the truth of the matter asserted
- for example, to show its effect on ...