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People v. Thames

Court of Appeals of Colorado, Fourth Division

August 8, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Douglas Thames, Defendant-Appellant.

          Mesa County District Court No. 12CR517 Honorable Richard T. Gurley, Judge.

          Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Alan M. Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          LIPINSKY JUDGE

         ¶ 1 Defendant, Douglas Thames, was the second person convicted for the sexual assault and murder of J.T. Nineteen years earlier, a jury had convicted Robert Dewey for the same crimes. The prosecution's case against Dewey had included testimony that his DNA could have been present at the site of the murder. Because of the state of DNA testing at the time, however, those test results did not indicate the likelihood that the DNA recovered at the crime scene matched that of Dewey.

         ¶ 2 Fifteen years after Dewey's conviction, DNA testing using an improved technology known as STR (Short Tandem Repeat) revealed that Thames's DNA was present on objects found at the crime scene and under J.T.'s fingernails. The STR tests showed there was only a one in seven sextillion chance that the match to Thames was random.

         ¶ 3 As a result of the new DNA tests, Dewey was exonerated and released from prison. The same tests led to the filing of charges against Thames. A jury convicted Thames of first degree murder after deliberation, first degree felony murder, and first degree sexual assault.

         ¶ 4 Thames contends on appeal that the trial court erred in not allowing him to introduce evidence of Dewey's conviction or the DNA test results (the Results) presented at Dewey's trial. Thames also contends that the trial court erred in permitting the prosecutor to comment on his silence during a video-recorded interrogation (the Interrogation). He further contends that the trial court should not have permitted the jury to view the video of the Interrogation because it showed him wearing prison garb. Thames also argues that the cumulative effect of these errors requires reversal. Lastly, he argues that the trial court violated his right to be free from double jeopardy by imposing mandatory statutory surcharges and costs (the Surcharges) outside his presence after sentencing.

         ¶ 5 We affirm but remand with instructions to allow Thames the opportunity to argue that he is entitled to a statutory waiver of the Surcharges.

         I. Facts and Procedural History

         ¶ 6 A neighbor discovered J.T.'s body in the bathtub of her apartment. J.T. had been beaten, sexually assaulted, and strangled to death with a dog leash. Pieces of soap had been inserted into her vagina.

         ¶ 7 Dewey was an initial suspect. Police arrested him after DNA testing revealed the possibility that J.T.'s blood was on one of his shirts. As noted, a jury convicted Dewey for J.T.'s sexual assault and murder in 1996.

         ¶ 8 In 2011, new DNA testing exonerated Dewey. The testing revealed the presence of Thames's DNA on the leash and underneath J.T.'s fingernails, among other locations.

         ¶ 9 After reviewing the new DNA results, law enforcement officers interrogated Thames regarding the murder of J.T. At the time of the Interrogation, Thames was incarcerated for an unrelated offense. The People then charged Thames with first degree murder after deliberation, first degree felony murder, and first degree sexual assault.

         ¶ 10 Thames challenged the admissibility of his statements during the Interrogation on the grounds that he had not knowingly and intelligently waived his right against self-incrimination. The trial court granted Thames's motion to suppress his statements. The Colorado Supreme Court reversed. People v. Thames, 2015 CO 18, ¶¶ 27-28, 344 P.3d 891, 898.

         ¶ 11 At trial, Thames pursued an alternative suspect defense, arguing that Dewey had sexually assaulted and killed J.T. (Thames presented evidence that other individuals may also have committed the crimes. Evidence concerning those alternative suspects is irrelevant to this appeal.) After a four-week trial, the jury found Thames guilty on all counts.

         ¶ 12 On the murder counts, the trial court sentenced Thames to a term of life imprisonment in the custody of the Department of Corrections without the possibility of parole. The court further sentenced him to forty-eight years imprisonment on the sexual assault count. The court did not impose any surcharges or costs at the sentencing hearing.

         II. The Trial Court Did Not Abuse Its Discretion by Refusing to Admit Evidence of Dewey's Conviction

         ¶ 13 Thames contends that the trial court violated his constitutional right to present a defense by refusing to admit evidence that a jury had previously convicted Dewey of the same crimes with which Thames was charged. We discern no error.

         A. Standard of Review

         ¶ 14 We review a trial court's ruling on evidentiary issues, including the admission of alternative suspect evidence, for an abuse of discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or is based on an erroneous view of the law. People v. Elmarr, 2015 CO 53, ¶ 20, 351 P.3d 431, 438.

         B. Law Governing Admission of Alternative Suspect Evidence

         ¶ 15 "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (citations omitted); see also People v. Salazar, 2012 CO 20, ¶ 17, 272 P.3d 1067, 1071. A criminal defendant is entitled to all reasonable opportunities to present evidence that might tend to create doubt as to his guilt. Elmarr, ¶ 26, 351 P.3d at 438.

         ¶ 16 However, the right to present a defense is generally subject to, and constrained by, familiar and well-established limits on the admissibility of evidence. Id. at ¶ 27, 351 P.3d at 438. The admissibility of alternative suspect evidence depends on the strength of the connection between the alternative suspect and the charged crime. Id. at ¶ 22, 351 P.3d at 438.

         ¶ 17 To be admissible, alternative suspect evidence must be relevant under CRE 401 and its probative value must not be substantially outweighed by the danger of confusion of the issues or misleading the jury, or by considerations of undue delay under CRE 403. Elmarr, ¶ 22, 351 P.3d at 438. But a defendant does not have the right to "present all the evidence he wishes or do so in the manner he chooses." People v. Saiz, 32 P.3d 441, 449 (Colo. 2001) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

A trial court retains the discretion to assess the incremental probative value of evidence offered by a criminal defendant and to exclude even logically relevant evidence that would be more wasteful of time, confusing, or misleading than helpful to the jury. . . . [I]t may not abdicate its responsibility to guard against prejudice and promote judicial efficiency by excluding evidence that is insufficiently probative to assist in the search for truth.

Id.

         C. The Trial Court Did Not Abuse Its Discretion by Limiting the Evidence Implicating Dewey as an Alternative Suspect

         ¶ 18 To support his argument that the trial court should have admitted evidence of Dewey's conviction, Thames relies on the reasoning in Gore v. State, 119 P.3d 1268 (Okla. Crim. App. 2005). There, the Oklahoma Court of Criminal Appeals held that the defendant was entitled to present evidence that another individual, Williamson, had been convicted of the same murder for which the defendant was later charged. Id. at 1276. The appellate court reasoned that the evidence - which included Williamson's statement that he had dreamed of killing the victim, testimony by law enforcement officers and inmates who overheard Williamson admit to the crime, and statements by individuals that the victim had said Williamson had asked her out but she did not want to date him - was relevant in that it bore on the defendant's guilt or innocence. Id. The court held that, by excluding this evidence, the trial court had deprived the defendant of his constitutional right to present a defense. Id. at 1277.

         ¶ 19 Gore, however, is distinguishable. In this case, the trial court allowed Thames to present evidence pointing to Dewey as an alternative suspect.

         ¶ 20 The trial court at first excluded evidence of Dewey's trial and conviction. But, in the initial part of the trial, the court allowed Thames to present other evidence that Dewey had sexually assaulted and murdered J.T., including the following:

• Dewey spent a significant amount of time at J.T.'s apartment before she died.
• After J.T. kicked Dewey out of her apartment, Dewey said he was "going to get" J.T.
• Dewey stayed in an apartment near J.T.'s on the night J.T. was sexually assaulted and murdered, but left that apartment in the middle of the night.
• Dewey hid in a closet after police arrived at his apartment complex on the morning J.T.'s body was discovered.

         After the jury had heard this evidence, the court reversed itself and ruled that the prosecution had opened the door to the introduction of evidence of Dewey's trial. Thames contends that, although the jury heard substantial evidence suggesting that Dewey was the murderer, the trial court erred by not permitting him to tell the jury that Dewey had been convicted of the crimes.

         ¶ 21 While evidence of Dewey's conviction may have been relevant because it provided a strong logical connection between Dewey and the sexual assault and murder of J.T., we conclude that the trial court did not abuse its discretion in refusing to admit evidence of the conviction under CRE 403. Saiz, 32 P.3d at 446, 449. Unlike the defendant in Gore, Thames was able to implicate Dewey in the crimes by repeatedly emphasizing Dewey's behavior both before and after the discovery of J.T.'s body. And, as the trial court held, any probative value of Dewey's conviction was substantially outweighed by the danger that the jury would have "speculate[d] about why a different jury convicted Mr. Dewey" and conflated the issues between Dewey's trial and Thames's trial.

         ¶ 22 Further, introducing evidence of the conviction would have extended Thames's trial. CRE 403; see Elmarr, ΒΆ 31, 351 P.3d at 439 (court must weigh probative value of alternative suspect evidence against danger of undue delay). After Thames presented evidence of Dewey's conviction, the People would have had an opportunity to introduce evidence of Dewey's exoneration. This evidence could have involved ...


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