County District Court No. 12CR517 Honorable Richard T.
J. Weiser, Attorney General, Brian M. Lanni, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Alan M. Kratz,
Deputy State Public Defender, Denver, Colorado, for
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
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
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.
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.
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
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.
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.
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
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
• 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
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,
¶ 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 ...