The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY August 29, 2019
2019COA131
No. 2015CA1898 People v. West — Constitutional Law — Sixth Amendment — Right to Counsel — Right to Self-Representation
In this direct appeal of a defendant’s multiple convictions, a
division of the court of appeals considers whether a trial court’s
multiple evidentiary and discovery rulings against the pro se
defendant deprived him of his right to self-representation.
The division concludes that the Sixth Amendment’s guarantee of
the right to self-representation is narrow, pertaining only to the
question of whether a defendant knowingly and intelligently waived
his right to counsel in favor of proceeding pro se. See People v.
Arguello, 772 P.2d 87, 93 (Colo. 1989). Accordingly, the
constitutional right does not extend to protect a pro se defendant
from purported evidentiary or discovery errors made by the trial
court. COLORADO COURT OF APPEALS 2019COA131
Court of Appeals No. 15CA1898 Boulder County District Court No. 14CR1657 Honorable Andrew R. Macdonald, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Timothy West,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE TAUBMAN Hawthorne and Grove, JJ., concur
Announced August 29, 2019
Philip J. Weiser, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Timothy West, appeals the judgment of conviction
entered on a jury verdict finding him guilty of sexual assault of a
child under fifteen years of age, contributing to the delinquency of a
minor, and a class 4 drug felony. As an issue of first impression,
West, who represented himself at trial, asks us to consider whether
the trial court’s evidentiary and discovery rulings deprived him of
his right to self-representation. We conclude that they did not.
¶2 He also contends that the trial court (1) violated his right to a
speedy trial; (2) erred by not releasing the victim’s juvenile records
to him; (3) allowed improper testimony bolstering the victim’s
credibility; (4) erred by allowing the prosecution to untimely add
counts that contained a variance and trying those counts in the
wrong venue; and (5) cumulatively erred. We reject these
contentions as well and therefore affirm.
I. Background
¶3 In 2014, the People charged West with, among other things,
sexual assault of a child after he admitted to having sex with the
underage victim. Disregarding the trial court’s advisement, West
waived his right to counsel, choosing instead to proceed pro se.
1 ¶4 Throughout the course of the trial, the court repeatedly
explained the hazards of West representing himself, at times
making statements such as “he who represents himself has a fool
for a [client]” and “be prepared to live with the consequence of
[representing yourself], which is you are not going to have a lot of
resources that would be available to you with court-appointed
counsel.”
¶5 West continually asserted his right to a speedy trial. Over
West’s objection that it would violate his speedy trial rights, the
court set his trial for June 22, 2015. West then moved to reset the
trial within what he maintained was the statutory speedy trial
period, drawing the court’s attention to a document he had placed
in the mail on December 20, 2014, that purported to notify the
court and prosecution of his not guilty plea. The trial court denied
his motion. On June 2 and June 12, West again argued that his
speedy trial rights had been violated. The court rejected both
arguments, stating that the June 22 date was well within his
speedy trial period based on the prosecutor’s argument that the
period began on the date of his original arraignment hearing on
January 16, 2015. On June 19, West made one final effort to
2 dismiss his charges for violation of his statutory and constitutional
speedy trial rights. The court denied the motion, ruling that, even if
he properly entered his plea on December 20, 2014, June 22 was
the first business day after the statutory period expired and, thus,
the trial date was within the statutory speedy trial period.
II. Speedy Trial
¶6 West contends that the trial court violated his statutory and
constitutional rights to a speedy trial by setting his trial date for
June 22, 2015 — more than 180 days after he initially mailed his
notice of plea of not guilty on December 20, 2014. 1 We disagree.
A. Standard of Review and Preservation
¶7 We review de novo the trial court’s interpretation of Colorado’s
speedy trial statute and its analysis of the constitutional right to a
speedy trial. See People v. Nelson, 2014 COA 165, ¶¶ 17, 25, 360
P.3d 175, 180-81. However, we review the court’s findings of fact
for clear error, disregarding them only if the record is devoid of
support. Id. at ¶ 25, 360 P.3d at 181.
1 West’s argument is based on the incorrect premise that the statutory speedy trial period is 180 days. In fact, under section 18- 1-405(1), C.R.S. 2018, it is six months.
3 ¶8 It is undisputed that West preserved his statutory speedy trial
argument. For purposes of this opinion, we will assume West also
preserved his constitutional speedy trial argument.
B. Applicable Law
¶9 Both Federal and State Constitutions as well as a Colorado
statute protect a defendant’s right to a speedy trial. Id. at ¶ 22.
While the Sixth Amendment to the United States Constitution and
article II, section 16 of the Colorado Constitution guarantee the
right, the speedy trial statute implements it by prescribing a
deadline within which the defendant must be brought to trial after
the right attaches. Id. at ¶¶ 21-22, 360 P.3d at 180-81.
¶ 10 The constitutional right to speedy trial attaches when a
defendant is formally charged with an offense or arrested and
continuously held in custody prior to the filing of formal charges,
whichever occurs first. Moody v. Corsentino, 843 P.2d 1355, 1363
(Colo. 1993) (citing United States v. Marion, 404 U.S. 307, 320
(1971)); see also People v. Chavez, 779 P.2d 375, 376 (Colo. 1989);
People v. Glaser, 250 P.3d 632, 635 (Colo. App. 2010).
¶ 11 The United States Supreme Court has announced, and
Colorado has adopted, a four-factor balancing test to determine
4 whether a trial court has violated a defendant’s constitutional right
to a speedy trial. Barker v. Wingo, 407 U.S. 514, 530 (1972);
Chavez, 779 P.2d at 376. The Barker test requires us to weigh (1)
the length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of his or her right to a speedy trial; and (4)
prejudice to the defendant. 407 U.S. at 530.
¶ 12 The Barker Court described the length of the delay as “a
triggering mechanism,” requiring the court to first consider whether
the length of delay is “presumptively prejudicial.” Id. Unless the
court deems the length prejudicial, it need not analyze the
remaining factors. Id. at 531. In determining whether the first
factor triggers the rest of the analysis, the court may take into
consideration the particular circumstances of the case, such as the
seriousness and complexity of the charged offense. Id.
¶ 13 Colorado’s statutory right to a speedy trial imposes a more
precise period: six months from the date of the entry of a plea of not
guilty. § 18-1-405(1), C.R.S. 2018. The period ends at the
commencement of trial. Id. While the prosecution and the trial
court bear the burden of compliance, the defendant bears the
5 burden of proving that he or she was denied a speedy trial. Saiz v.
Dist. Court, 189 Colo. 555, 557-58, 542 P.2d 1293, 1295 (1975).
C. Analysis
¶ 14 We first address whether, under Barker, the trial court
violated West’s constitutional right to a speedy trial. Thus, we look
to the length of the alleged delay to assess its presumptive
prejudice. Here, the constitutional right attached at the time of
West’s arrest, which was eight months and six days before the first
day of trial. Our jurisprudence suggests that the length of delay
becomes presumptively prejudicial as it approaches one year. See
People v. Sandoval-Candelaria, 2014 CO 21, ¶ 35, 321 P.3d 487;
Nelson, ¶ 23, 360 P.3d at 181 (citing Doggett v. United States, 505
U.S. 647, 651 n.1 (1992)); Glaser, 250 P.3d at 635; see also People
v. Brewster, 240 P.3d 291, 299 (Colo. App. 2009) (concluding that
seven-and-one-half months was not a presumptively prejudicial
delay). Accordingly, we conclude that the delay here did not
prejudice West and thus we need not consider the remaining
factors.
¶ 15 Turning to West’s argument that the trial court violated his
statutory right to a speedy trial, we agree with the People that, even
6 if he invoked his right by mailing his plea of not guilty on December
20, 2014, trial commenced on June 22, the first business day after
the conclusion of the six-month period. § 2-4-108(2), C.R.S. 2018;
People v. Hampton, 696 P.2d 765, 771 n.8 (Colo. 1985). Thus, we
need not determine which event started the speedy trial clock
because, even if we assume that West’s mailing of December 20,
2014, did so, the June 22 trial date fell within the statutory period.
III. Right to Self-Representation
¶ 16 West argues that the trial court, through multiple discovery
and evidentiary rulings, deprived him of his fundamental right to
self-representation. We disagree.
A. Standard of Review
¶ 17 Whether a trial court denied a defendant’s right to self-
representation poses a question of law we review de novo. People v.
Abdu, 215 P.3d 1265, 1267 (Colo. App. 2009). If we conclude that a
trial court denied a defendant’s right to self-representation,
structural error results, and we must reverse. See People v. Waller,
2016 COA 115, ¶ 23, 412 P.3d 866, 872 (stating that structural
error, and not harmless error analysis, applies to the denial of the
right to self-representation).
7 B. Applicable Law
¶ 18 Though the State and Federal Constitutions guarantee the
right to self-representation, see Colo. Const. art. II. § 16; Faretta v.
California, 422 U.S. 806, 821 (1975), the predominant right to
counsel requires the trial court to ensure that the defendant has
knowingly and intelligently relinquished the right to counsel in
favor of proceeding pro se. See People v. Arguello, 772 P.2d 87, 93
(Colo. 1989). Accordingly, the Arguello court acknowledged that
“[c]ourts must indulge every reasonable presumption against
finding a waiver of the fundamental right to counsel.” Id.
¶ 19 Thus, when a defendant asserts a violation of his or her right
to self-representation, appellate courts generally consider whether
the trial court appointed counsel despite the defendant’s
unequivocal waiver of his or her right to counsel. See United States
v. McNeal, 663 F. App’x 732, 736 (10th Cir. 2016) (unpublished)
(holding that the trial court did not violate the defendant’s right to
self-representation when it did not grant him a continuance to
prepare his defense); People v. Johnson, 2015 COA 54, ¶¶ 15-25,
356 P.3d 1024, 1030-31 (reversing the trial court’s judgment based
on its denial of the invocation of his right to represent himself);
8 Abdu, 215 P.3d at 1269 (concluding that the trial court did not
violate the defendant’s right to self-representation when the
defendant did not unequivocally assert his right).
¶ 20 A defendant’s constitutional right to self-representation
proscribes the imposition of unwanted counsel, but it does not
insulate the defendant from the pitfalls of a poorly mounted pro se
defense. West submits nine broad allegations of the trial court
denying his right to self-representation, but we count at least
twenty-four separate instances in which West asserts that the trial
court’s actions thwarted his right to self-representation:
(1) denying him the right to appear pro se at the advisement
hearing;
(2) appointing the public defender over his objections;
(3) giving West only a brief time to read discovery before the
preliminary hearing;
(4) allowing the prosecutor to violate a discovery deadline;
(5) refusing to require the prosecutor to give him a bill of
particulars to narrow the timeframe for the offense;
(6) providing West with limited access to discovery;
9 (7) forcing him to choose between preparation of his defense
and sleep;
(8) not promptly appointing an investigator;
(9) declining to disclose the victim’s address;
(10) allowing the prosecutor to add charges too late for him
to be able sufficiently prepare his defense against them;
(11) prohibiting him from calling witnesses to testify about
the victim’s prior acts of dishonesty;
(12) barring him from recalling the victim as a witness;
(13) disallowing discovery of juvenile documents to attack the
victim’s motive and credibility;
(14) preventing him from cross-examining the victim about
her age, her relationship with her mother, and the alleged
abuse;
(15) precluding introduction of alternate suspect evidence;
(16) barring him from eliciting testimony about an alleged
hack of his Facebook account;
(17) precluding his access to a police report;
(18) ruling that he could not question the detective about the
victim’s motive;
10 (19) denying him the right to impeach the victim’s mother;
(20) overruling numerous objections he made but sustaining
most of the prosecution’s objections;
(21) admitting improper narrative testimony;
(22) improperly allowing bolstering testimony;
(23) permitting the prosecution to use his own offer of proof
against him; and
(24) showing bias against him as a pro se defendant through
its rulings.
¶ 21 Though some of the arguments above also assert additional
constitutional violations — including the rights to a complete
defense, due process, a fair trial, confront witnesses against him,
and compulsory process — the appeal couches all arguments within
the constitutional right to self-representation.
¶ 22 However, West does not cite authority, and we know of none,
in which an appellate court has concluded that a trial court’s
rulings on evidentiary and discovery issues violated the defendant’s
right to self-representation.
¶ 23 Because the additional aforementioned constitutional
arguments are not developed, we do not address them. See People
11 v. Diefenderfer, 784 P.2d 741, 752 (Colo. 1989) (“It is the duty of
counsel for appealing parties to inform a reviewing court both as to
the specific errors relied upon and as to the grounds, supporting
facts and authorities therefor.”)
1. West’s Arguments Do Not Implicate His Right to Self-Representation
¶ 24 West repeatedly alleges violations of his right to
self-representation based on the trial court’s evidentiary and
discovery rulings. However, if the trial court erred or abused its
discretion making these rulings, such assertions of error or abuse
of discretion, for the most part, could have been made even if West
had been represented by counsel.
¶ 25 Moreover, though the oft-recited platitude that “a pro se
defense is usually a bad defense,” Abdu, 215 P.3d at 1268 (quoting
Martinez v. Court of Appeal, 528 U.S. 152, 161 (2000)), may ring
true, the interests of justice did not obligate the trial court to try the
case for West, see Bergerud, 223 P.3d at 700 (stating that the trial
court may, but is not required to, assist a pro se defendant).
Nevertheless, the trial court appointed advisory counsel and, at
various stages, explained its rulings and the law to West, while at
12 other times it provided him lenient treatment, though it was not
required to do so. The court also informed West multiple times
that, if he disagreed with a discovery ruling, he could raise the
disagreement on appeal.
¶ 26 We conclude that even if the trial court’s numerous rulings
were erroneous or an abuse of discretion, they did not constitute a
violation of West’s constitutional right to self-representation. West
litigated his case to a jury representing himself, which is precisely
what he requested.
2. West’s Waiver of His Right to Counsel
¶ 27 However, West raises a single claim that we agree implicates
his right to self-representation: the trial court purportedly denied
West’s request to proceed pro se and appointed a public defender at
the advisement hearing. This contention requires us to review
West’s putative waiver of his right to counsel and the specific
language thereof. West initially stated, “At this time, I wish to
proceed pro se, but I do not wish to completely waive my right to
counsel. I need to think about it.” When the court replied that it
would appoint a public defender, he vacillated again, stating, “if you
do that, then I will be denied the evidence against me, so I must
13 proceed pro se even thought [sic] I would like the assistance of
¶ 28 The court then explained that it must either appoint counsel
or allow him to continue without an attorney. When West stated
that he would proceed pro se, he also indicated that he might seek
a private attorney. Although West’s final statement to the court at
the advisement hearing was that he wished “to proceed pro se,” we
agree with the trial court’s implicit determination when it appointed
a public defender that the irresoluteness of his statements to the
court suggested that his waiver was not unequivocal. See Abdu,
215 P.3d at 1268. Thus, until he entered an unequivocal waiver
and dismissed his public defender at the next hearing, because he
had not yet properly invoked his right to self-representation, the
trial court did not err in indulging every reasonable presumption
against finding that he had waived his fundamental right to
counsel.
IV. The Victim’s Juvenile Record
¶ 29 West contends that the trial court erred by failing to disclose
the victim’s juvenile record because it contained exculpatory
evidence. We disagree.
14 A. Standard of Review
¶ 30 We review a trial court’s ruling on discovery issues, including
its decision whether to review juvenile records in camera, for an
abuse of discretion. See People v. Herrera, 2012 COA 13, ¶ 10, 272
P.3d 1158, 1161 (stating that abuse of discretion is the proper
standard of review for a trial court’s “decision whether to review
social services records in camera”). However, even if the court erred
in not disclosing documents, a defendant must show “a reasonable
likelihood that the verdict would have been different had the
pertinent information been disclosed before trial.” People in Interest
of A.D.T., 232 P.3d 313, 317 (Colo. App. 2010).
¶ 31 Because the documents at issue are sealed, the People
concede — and we agree — that we may conduct an independent
review to determine whether the documents were discoverable and,
if so, whether prejudice resulted from the court’s ruling that the
records are not discoverable. See id. at 319.
B. Analysis
¶ 32 The court must weigh the interest of the People in protecting
confidential records of a victim against the defendant’s interest in
disclosure. See Martinelli v. Dist. Court, 199 Colo. 163, 171, 612
15 P.2d 1083, 1089 (1980). “If the state has an interest in the
confidentiality of certain sensitive information, . . . the court must
balance that interest against the defendant’s constitutional right to
discover favorable evidence.” A.D.T., 232 P.3d at 316 (citing
Pennsylvania v. Ritchie, 480 U.S. 39, 57-60 (1987)).
¶ 33 Here, the court issued a protective order after its in camera
review, concluding that the documents were “not relevant to the
issue that had been raised in this case so far . . . [and, the court did
not] think it[] [was] appropriate to release them.” After our own in
camera review of the juvenile records at issue, we conclude that,
even if the records were discoverable, the verdict likely would not
have been different had the records been disclosed; thus, we affirm
the trial court’s ruling on this issue.
V. Witness Bolstering
¶ 34 West asserts that some testimony improperly bolstered the
victim’s credibility. We disagree.
¶ 35 On direct examination, the prosecutor elicited the following
testimony from the victim:
Q. [W]hen you first sat down today, the judge asked you about -- to raise your hand and to
16 talk about telling the truth today. Do you recall him asking you that? A. Yes. Q. Okay. When, um, you came in here before, did I talk to you as well about the -- about what’s the number one rule about testifying? A. Yes. Q. What’s the number one rule? A. Tell the truth. Q. Okay. Is that what you have done today while you’ve been here testifying? A. Yes.
¶ 36 During cross-examination of the victim’s mother, West asked
her mother repeatedly whether she had told the victim what to tell
law enforcement officials. Also during redirect examination, the
following exchange occurred between the prosecutor and the
victim’s mother:
Q. Okay. Mr. West asked you several times if you told [the victim] what she should say to Sandie, Detective Jones, that is? A. I told [the victim] to tell the truth.
¶ 37 Finally, during a detective’s testimony, the prosecutor used
the phrase “consistent with” in the following instances:
• asking the detective whether the timing of some text
messages between the victim and West was “consistent with”
(1) the victim’s testimony about when she was with West
and at a homeless camp, and
17 (2) police contact with the victim and her mother; and
• asking him about events West mentioned in text messages to
the victim being “consistent with” other sources of
information, including police records and the victim’s mother.
¶ 38 Because West failed to object to the testimony now on appeal,
we review for plain error. Hagos v. People, 2012 CO 63, ¶ 18, 288
P.3d 116, 120. We discern plain error if the error was so “obvious
and substantial” as to “undermine[] the fundamental fairness of the
trial itself [and] cast serious doubt on the reliability of the judgment
of conviction.” Id. (quoting People v. Miller, 113 P.3d 743, 748-50
(Colo. 2005)). Thus, we reverse only if we conclude that the trial
judge should have avoided the error “without benefit of objection.”
People v. Ujaama, 2012 COA 36, ¶ 42, 302 P.3d 296, 304.
¶ 39 Witnesses may not opine on the truthfulness of another
witness on a particular occasion. Venalonzo v. People, 2017 CO 9,
¶ 32, 388 P.3d 868, 877; see Liggett v. People, 135 P.3d 725, 731
(Colo. 2006) (concluding that the prosecution may not ask a witness
to opine on the veracity of another witness’s testimony). As the
18 Venalonzo court emphasized, testimony bolstering that of another
witness becomes particularly concerning in child sexual assault
cases in which the case often turns on the witness’s credibility.
Venalonzo, ¶ 33, 388 P.3d at 877-78. This most frequently occurs
in instances of a witness testifying that the victim’s report of sexual
assault was believable. See id.; see also People v. Wittrein, 221 P.3d
1076, 1081 (Colo. 2009); People v. Eppens, 979 P.2d 14, 18 (Colo.
1999).
¶ 40 The mother did not opine on the truthfulness of the victim’s
testimony; instead, she told the jury that, on multiple occasions,
she had told the victim to tell the truth. The present case is unlike
Wittrein, in which the supreme court determined that a child
psychologist’s testimony that she could not imagine a child
fabricating a story about sexual assault was improper because it
was a “generalization about whether children have the
sophistication to fabricate allegations of sexual abuse.” 221 P.3d at
1082. Nor are the facts here similar to those in Venalonzo, where
the supreme court concluded that it was improper for the district
court to allow the victim’s mother to testify that “[the victim] did not
19 display any signs that she was lying when she reported the
incident, that [the victim] was not sophisticated enough to make up
a story about the sexual assault, and that [the victim] had no
reason to accuse [the defendant] unless the incident had actually
occurred.” ¶ 39, 388 P.3d at 879.
¶ 41 Nor do the questions asked by the prosecutor, and the
testimony provided by the victim’s mother, align with those of
Liggett. In Liggett, the prosecutor asked both the defendant and
another witness whether the other was lying or mistaken. 135 P.3d
at 728. The supreme court deemed this type of questioning
categorically improper. Id. at 732.
¶ 42 The prosecutor’s questioning of the victim about his previous
conversation with her merely elicited testimony from the victim
about the truthfulness of her own testimony, which does not
constitute bolstering as discussed in Wittrein and Venalonzo.
Moreover, the mother’s testimony stated that she had told the
victim to tell the truth — not that the victim had told the truth.
¶ 43 Finally, the detective said nothing about the truth of
testimony; instead, the detective indicated only that certain
statements did not conflict with other statements or evidence.
20 ¶ 44 Given that the unobjected-to testimony here is distinguishable
from the bolstering testimony ruled improper in other cases, we
discern no error, much less plain error.
VI. Added Counts
¶ 45 West contends that the trial court erred when, approximately
five weeks before trial, it allowed the prosecutor to add counts of
contributing to the delinquency of a minor and distribution of
marijuana to a minor, both of which occurred in a different district.
We conclude that any error was harmless.
¶ 46 The trial court may change the trial’s venue “when adequate
grounds are presented by the motion of a party . . . or whenever it is
necessary to obtain an impartial jury . . . . In the absence of such
grounds, however, the propriety of venue is a matter of fact and
law . . . .” People v. Reed, 132 P.3d 347, 351 (Colo. 2006) (citations
omitted). Because the underlying facts are not in dispute, we
review de novo. See People v. Shackley, 248 P.3d 1204, 1206 (Colo.
2011).
21 ¶ 47 West preserved this argument when, at the preliminary
hearing on the two added charges, he asserted that the prosecutor
filed the two charges in the wrong judicial district.
¶ 48 “[P]roof of venue is not an element of any offense, and venue
need not be proved by the prosecution unless required by the
statute defining the offense.” People v. Perez, 129 P.3d 1090, 1094
(Colo. App. 2005). West does not allege prejudice attributable to the
venue that substantially affected the outcome of the trial; thus, we
discern no grounds on which the trial court could have ordered a
change of venue. § 16-6-101, C.R.S. 2018; see Keohane v.
Wilkerson, 859 P.2d 291 (Colo. App. 1993), aff’d, 882 P.2d 1293
(Colo. 1994). To the extent that he alleges prejudice arising from
any lack of preparation time, the court and prosecutor offered a
continuance to allow him additional time to prepare. Thus, he
could have waived his right to a speedy trial in favor of extra trial
preparation time, but he made the strategic decision not to do so.
VII. Cumulative Error
¶ 49 Because we perceive no error in the trial court’s challenged
rulings, we conclude that cumulative error did not result.
22 VIII. Conclusion
¶ 50 Accordingly, the judgment is affirmed.
JUDGE HAWTHORNE and JUDGE GROVE concur.