Summaries of Published Opinions
| Publication year | 2023 |
| Pages | 82 |
COLORADO COURT OF APPEALS
2023 COA 20. No. 20CA1375. People v. Cuellar. Sexual Assault—Prior Sexual Assault Evidence—Right to Counsel—Right to Remain Silent—Closing Arguments—Prosecutorial Misconduct—Misstatement of the Law—Denigration of Counsel—Cumulative Error.
Cuellar was charged with sexually assaulting B.W. Before trial, he made inconsistent statements to police about the incident. Cuellar sought leave pretrial to introduce evidence under the rape shield statute that B.W. had previously been sexually assaulted. The trial court ruled the evidence inadmissible. At trial, defense counsel argued that B.W. had consented to engage in sex with Cuellar but that she refused him when he had difficulty maintaining an erection. In her opening statement, one of the prosecutors mentioned that Cuellar had initially invoked his right to remain silent, and an officer and a detective who testified for the prosecution also referenced Cuellar's invocation of that right. During rebuttal closing argument the prosecutor told the jury that to acquit Cuellar, it would have to believe that B.W. lied about the incident. The prosecutor also argued that defense counsel had improperly insinuated that B.W. had invited the sexual assault and stated that our society does not tolerate such insinuations against crime victims. Cuellar was convicted as charged.
On appeal, Cuellar contended that the trial court violated his right to present a complete defense by excluding evidence showing that B.W. had previously been sexually assaulted. He maintained that the prior sexual assault evidence was relevant to explain his inconsistent statements and would have bolstered his credibility. Here, the prosecution charged Cuellar under CRS § 18-3-402(1)(a), (4)(a), so it had to prove that he caused B.W.'s submission by the use of physical force or physical violence. Cuellar's knowledge of B.W.'s sexual history was thus irrelevant to whether she consented to having sex with him. Accordingly, the trial court properly concluded that the prior sexual assault evidence was irrelevant to explain Cuellar's inconsistent statements and, thus, to bolster his credibility. Therefore, there was no error.
Cuellar also argued that the court reversibly erred by (1) allowing the prosecutor to comment during opening statement on Cuellar's invocation of his right to counsel and right to remain silent; and (2) admitting testimony from an officer and a detective that, while in custody, Cuellar invoked his right to remain silent. Here, the court erred in both respects, but the record shows that the references to Cuellar's invocation of his rights were brief, were not the focus of the prosecutor's comments or the officer's and the detective's testimony, and were not repeated in closing argument. Further, the evidence against Cuellar was overwhelming. Accordingly, the errors were harmless.
Cuellar further argued that the court reversibly erred by allowing the prosecutor to commit misconduct during closing argument by (1) misstating the law and lowering the burden of proof by arguing that the jury could acquit Cuellar only if the jurors believed that B.W. lied about the incident; and (2) denigrating defense counsel by arguing that counsel insinuated that B.W. invited the sexual assault and by saying that our laws do not tolerate that. First, it is improper argument for a prosecutor to argue that the jury must find that a witness lied to acquit the defendant, because this type of argument misstates the prosecution's burden of proof. Second, defense counsel did not insinuate that B.W. invited the sexual assault; rather, defense counsel's closing arguments supported the defense theory that B.W. engaged in consensual sex with Cuellar. While the prosecutor had the right to respond to the defense theory, by condemning defense counsel's argument so harshly, he exceeded the wide latitude afforded to him by improperly characterizing the theory of defense. And the prosecutor's characterization of defense counsel's consent argument as intolerable created animosity against defense counsel and the theory of defense. Accordingly, the prosecutor committed misconduct. However, given the overwhelming evidence of guilt and the court's proper instructions to the jury, the errors were harmless.
Lastly, Cuellar argued that the cumulative effect of the court's errors deprived him of a fair trial. However, the prosecutor's comments were brief and did not violate Cuellar's constitutional rights, and the court correctly instructed the jury on the applicable law, including the burden of proof. Accordingly, the cumulative effect of the court's errors does not show that the trial was unfair.
The judgment of conviction was affirmed.
March 9, 2023
2023 COA 21. No. 20CA0227. People v. Serna-Lopez. Double Jeopardy—Multiplicity—Aggravated Robbery—Menacing—Possession of a Controlled Substance—Sentencing—Penalty Enhancers—Modified Unanimity Instruction— Cumulative Errors.
Serna-Lopez participated in robbing the victim using what appeared to be a handgun. Serna-Lopez was later arrested at a traffic stop, during which 0.6 grams of methamphetamine and a BB pistol were found on the floorboard at his feet. He was convicted of two counts of aggravated robbery (counts 1 and 6), one count of menacing, and one count of possession of a controlled substance. The jury also convicted him on two sentence enhancer counts. The trial court imposed concurrent prison sentences of 12 years on the two counts of aggravated robbery and a consecutive sentence of three years for menacing. On the controlled substance charge, the court applied the special offender enhancer counts to increase the offense from a level 4 drug felony to a level 1 drug felony, and it sentenced him to 12 years in the custody of the Colorado Department of Corrections, to run consecutively to the other two sentences.
On appeal, Serna-Lopez argued that the trial court violated double jeopardy by not merging the two counts of aggravated robbery. If a defendant is charged and convicted under a single statute defining alternative means of committing the same offense, the two convictions must be merged. The elemental subsections of the aggravated robbery statute set forth alternative means of committing the same offense. Here, Serna-Lopez was charged with separate crimes based on these alternative means by which he committed aggravated robbery against the same victim; the jury returned two separate convictions for aggravated robbery, one based on each count; and the district court entered separate felony convictions for the separate counts. Because the two counts of aggravated robbery established a single offense, they must be merged, and the failure to merge the two offenses is not harmless beyond a reasonable doubt.
Serna-Lopez also argued that the trial court reversibly erred in not ensuring a unanimous verdict on the two special offender sentence enhancer counts because it did not require the prosecution to elect the provision it relied on or, alternatively, give a modified unanimity instruction. If the prosecution presents evidence of multiple distinct acts where any of those acts could constitute the offense charged, and the jury could reasonably disagree regarding which act was committed, the district court must either (1) require the prosecution to elect the act it is relying on to establish the count or (2) provide a modified unanimity jury instruction. Here, Serna-Lopez was charged with and convicted of possession of a controlled substance, and in conjunction with that charge, the prosecution also charged him with two special offender sentence enhancers. The trial court combined the two special offender sentence enhancers into a single instruction, did not require the prosecution to elect the special offender sentence enhancer it was relying upon, and did not give a modified unanimity instruction. Because a reasonable juror could have rejected either special offender sentence enhancer alternative, the failure to give the modified unanimity instruction casts serious doubt on the special offender sentence enhancer conviction. Therefore, the court committed obvious error.
Serna-Lopez further contended that there was insufficient evidence for a reasonable juror to conclude that a BB gun is a deadly weapon. Here, while the BB gun was not fired during the robbery, it was specifically used to instill fear, and expert testimony was not needed to establish that the BB gun was capable of producing death or serious bodily injury. Sufficient evidence was presented to permit, but not require, a reasonable juror to conclude beyond a reasonable doubt that the BB gun was capable of causing serious bodily injury and therefore met the definition of a deadly weapon.
Serna-Lopez also asserted that cumulative errors violated his right to a fair trial. Here, no cumulative error exists because while two errors were committed, the court of appeals addressed and cured the merger issue, which is independent of the special offender sentence enhancer counts; and it reversed the drug possession enhanced sentence, so any additional errors associated with those counts are moot.
Serna-Lopez's conviction on count 6 was vacated and the trial court was directed to issue a new mittimus indicating count 6 was merged into count 1. Serna-Lopez's judgment and sentence on the special offender sentence enhancer counts was reversed. The case was remanded to the trial court to allow the prosecution to elect between resentencing on the controlled substance count as a level 4 drug felony or proceeding with a new trial on the two special offender sentence enhancer counts. The remaining convictions and sentences were affirmed.
2023 COA 22. No. 20CA1326. People v. Quillen. Evidence—Hearsay Exceptions—CRE 803(6)— CRE 902(11)—Confrontation Clause—Expert...
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