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People v. Cohen

Court of Appeals of Colorado, Fifth Division

March 21, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Emily Elizabeth Cohen, Defendant-Appellant.

          Boulder County District Court No. 14CR437 Honorable Andrew Hartman, Judge

          Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          J. JONES JUDGE.

         ¶ 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.

         I. Background

         ¶ 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 with her.

         ¶ 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.[1] 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 Allen instruction.[2]

         ¶ 7 The jury continued deliberating and returned guilty verdicts on thirteen counts. It hung on one and acquitted on the remaining seven.

         II. Discussion

         ¶ 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.

         A. OARC Complaints

         ¶ 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 defendant's convictions.

         1. 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.[3]

         2. Applicable Law

         ¶ 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 ...


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