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People v. Gutierrez

Supreme Court of Colorado, En Banc

September 17, 2018

The People of the State of Colorado, Plaintiff-Appellant
Daniel S. Gutierrez. Defendant-Appellee

          District Court, City and County of Denver, Case No. 16CR2598 Honorable Brian R. Whitney, Judge

          Attorneys for Plaintiff-Appellant: Beth McCann, District Attorney, Second Judicial District Katherine A. Hansen, Deputy District Attorney Denver, Colorado

          Attorneys for Defendant-Appellee: Megan Ring, Public Defender Kelson Bohnet, Senior Deputy Public Defender Denver, Colorado

          Attorney for Amicus Curiae Rocky Mountain Victim Law Center: Katherine Houston Denver, Colorado



         ¶1 This appeal poses the narrow question whether the trial court abused its discretion when it denied the People's request to permit a witness to testify remotely, via Skype or similar service, at a hearing on a motion to suppress the defendant's post-arrest statements. We conclude that the trial court did not abuse its discretion. Hence, the order suppressing the defendant's statements is affirmed.

         I. Facts and Procedural History

         ¶2 Jairo Perez was shot and killed in his garage.[1] A friend of the decedent stated that he saw who committed the murder and that the murderer had fled. That witness later positively identified the defendant, Daniel Gutierrez, as the murderer in a police photo array.

         ¶3 Minutes after the murder of Perez, a man attempted to force his way into a residence located just a block from the murder scene. That man then assaulted one of the home's occupants in the presence of a witness. When police later arrived and presented the assault victim with a photo array, the victim positively identified Gutierrez as his assailant and stated that he knew Gutierrez. The victim reported that Gutierrez fled following the assault.

         ¶4 Later that same night, police arrested Gutierrez at his sister's house. Officers placed Gutierrez in the back seat of a police car where he spoke with Officer Tidwell. According to Officer Tidwell, Gutierrez made two inculpatory statements: "I was just trying to get my life together man, and I was doing it until this happened tonight" and "I'll be honest with you, some stuff did go down over there but I blacked out and don't know what happened." Gutierrez later tested positive for gunshot residue on his right hand. He was charged with murder and assault.

         ¶5 Gutierrez filed several motions that required pretrial evidentiary hearings. Relevant here, he sought to suppress the statements he made to Officer Tidwell on the basis of an alleged Miranda violation. The court scheduled a hearing on that motion in February 2017, but ended up continuing it three times to accommodate witness availability. Officer Tidwell was not the sole cause of each of these continuances, but he was unavailable for each of the hearings. In an attempt to hear all witnesses' testimony and complete the pretrial hearing on the motion to suppress, the court divided the hearing into different days. At a hearing in early June where Officer Tidwell was not present but other witnesses testified, the People stated that he would be back and prepared to testify in July. In response, the court continued the remainder of the hearing for July 7.

         ¶6 Officer Tidwell was not present at the July 7 hearing because of an on-the-job shoulder injury that required surgery and left him "not cleared for duty." As a result, the People asked for another continuance, which the court granted over the defense's objection. At that time, the court cautioned the People that they needed to ensure their witness show up if they were going to meet their burden[2]:

[I]t needs to become a priority of the officers that are investigating a Class 1 felony . . . to get here on time. . . . And at the next motions [hearing] . . . if the officers are not available [the] motions [to suppress] are granted. Because without witnesses I can't see how the People could sustain their burden.

         ¶7 The court then rescheduled the second half of the hearing for late July, just three weeks before trial. When rescheduling the hearing, the court noted that the trial date could not be moved because the court had no available dates between the scheduled trial time in August and the speedy trial deadline in September. The court closed the July 7 hearing by again cautioning the People that if the ...

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