22CA0852 Peo v Dejesus 11-27-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0852 Montezuma County District Court No. 21CR104 Honorable Christopher J. Munch, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ramon Alberto Dejesus III,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE TOW Pawar and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 27, 2024
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Ramon Alberto Dejesus III, appeals the judgment
of conviction entered on a jury verdict finding him guilty of
possession with intent to distribute a controlled substance. We
reverse and remand for a new trial.
I. Background
¶2 Dejesus was charged with possession with intent to
manufacture or distribute a schedule I or II controlled substance,
introducing contraband in the first degree, and three habitual
criminal counts.
¶3 According to the evidence presented at trial, Deputy Smith was
on patrol looking for a woman who had pending warrants for her
arrest. The deputy went to a trailer park in search of the woman.
He saw Dejesus with another man working together on a
motorcycle. Deputy Smith checked the men for active warrants and
found one for Dejesus. Deputy Smith placed Dejesus under arrest.
He then searched Dejesus for weapons and contraband.
¶4 The search was recorded on Deputy Smith’s body camera
(bodycam), and the recording was admitted at trial as “Defendant’s
Exhibit A” and played for the jury without any audio. The bodycam
footage depicted Deputy Smith searching Dejesus, who was wearing
1 sweatpants over a pair of basketball shorts. As reflected in the
video, Deputy Smith testified that he patted, pinched, and grasped
the outside Dejesus’s pant pockets to see if he could feel anything,
and, when he did, he reached into the pockets and removed the
items. During the search, Deputy Smith found cash and a smart
phone in Dejesus’s left-side pant pocket and a torch lighter in his
right-side pant pocket. However, Deputy Smith did not locate any
contraband or weapons.
¶5 After the search, Deputy Smith transported Dejesus to the jail
to book him in on the active warrant. On the way, Deputy Smith
testified that they stopped because Dejesus was complaining his
handcuffs were too tight. Upon arrival at the jail, Deputy Smith
removed Dejesus from the police car. Deputy Smith conducted a
second search, which was also recorded on his bodycam.
¶6 The bodycam footage of the second search was admitted at
trial as “People’s Exhibit 2” and played for the jury with a very brief
snippet of audio that was selected by the prosecution. It depicted
Deputy Smith quickly searching Dejesus’s sweatpants as well as
the basketball shorts Dejesus was wearing underneath his
sweatpants, and immediately locating a large baggie of
2 methamphetamine in the right-side pocket of his basketball shorts.
Thereafter, Dejesus entered the jail and was searched by a second
deputy, who found five additional smaller baggies of
methamphetamine. This search was only partially visible on
People’s Exhibit 2 because the second deputy’s bodycam was
“bumped” during the search and turned off. However, the second
deputy testified that the drugs were found in the left-side pocket of
Dejesus’s basketball shorts.
¶7 Before trial, the parties litigated the admissibility of Dejesus’s
statements on People’s Exhibit 2. The prosecution filed a motion
objecting to “any self-serving hearsay statements of [Dejesus]
including but not limited to any statements suggesting someone
else placed the drugs in his pockets.” In a written response,
defense counsel argued that under People v. Vanderpauye, 2021
COA 121, there was no “per se” rule that self-serving hearsay was
inadmissible. And, under the circumstances presented here, the
prosecution’s attempt “to manipulate their evidence so as to
eliminate a certain statement of [Dejesus]” would “provide the
misleading impression that [he] did not contemporaneously
disclaim knowledge or possession of the methamphetamine at
3 issue.” Defense counsel asserted that, under CRE 106, if the
district court permitted the prosecution to play a redacted version
of People’s Exhibit 2, the defense would be entitled to play portions
of the video “including [Dejesus’s] own statements, necessary to
correct any misleading impression.” In a written order, the court
instructed the parties to be prepared to address the matter on the
morning of trial.
¶8 On the morning of trial, defense counsel described the content
of People’s Exhibit 2 for the court:
The body cam starts, it’s a close-up of [Dejesus’s] pockets, the search has just begun, the deputy goes through, finds what he believes to be contraband.
[Dejesus] is pretty immediate in his reaction on the body cam video. He says something like, “Oh, no, no, no, no, no,” like when he starts to find the contraband.
He asks Deputy Smith, I believe, a series of questions to the effect of “did you ever see me go through my pockets,” asserts that a couple of times, I believe, as well.
¶9 Defense counsel continued, “I mean, it is clear [Dejesus] is
pretty fervently denying pretty much the entire time on the video
4 that the contraband is his.” The prosecutor agreed that this was a
good summary of People’s Exhibit 2.
¶ 10 When the district court asked if it was the prosecution’s
intention to play the video “without the audio,” the prosecutor
explained that he intended to have “little snippets of audio” that
were not statements by Dejesus but statements that were “need[ed]
as substantive evidence.” For example, the prosecutor explained
that he intended to include Deputy Smith’s question, “Do you have
anything else on you?” after the first bag of methamphetamine was
found on Dejesus in the sally port of the jail, but before Dejesus
was searched inside the jail by the second deputy.
¶ 11 Defense counsel repeated its CRE 106 argument:
[T]o play [People’s Exhibit 2] without [Dejesus’s] statements is to give the jury a video of what happened, show the contraband being found, and if the video is edited in the way that the People have . . . it [would] give[] an impression that [Dejesus] did not disclaim ownership of the contraband. That, essentially, the jury will see the video and say all right, well, they found the meth and [Dejesus] apparently didn’t have anything to say about that.”
5 ¶ 12 The district court overruled defense counsel’s objection,
concluding that because none of Dejesus’s statements were to be
admitted in the video, CRE 106 was inapplicable.
¶ 13 At trial, Dejesus argued that the methamphetamine found in
his pockets was “not his meth,” he had “been framed,” and law
enforcement’s story “about where this meth came from [did] not add
up.” The jury found him guilty of possession with intent to
distribute a controlled substance but acquitted him of introducing
contraband in the first degree. Following the verdict, the parties
stipulated to a sixteen-year prison sentence in exchange for
dismissal of the habitual counts as well as the charges in another
case. The district court accepted the agreement and sentenced
Dejesus accordingly.
II. Discussion
¶ 14 Dejesus contends that his exculpatory statements on People’s
Exhibit 2 should have been admitted under the rule of
completeness or alternatively, the doctrine of opening the door. We
agree that the statements should have been admitted under the
rule of completeness, and therefore, we do not address Dejesus’s
alternate contention. And because we conclude that the district
6 court’s error in admitting People’s Exhibit 2 without Dejesus’s
statements was not harmless, we reverse his judgment of
conviction.
A. Record Sufficient for Review
¶ 15 Initially, we address the People’s assertion that the record does
not reflect what portions of the footage on People’s Exhibit 2 was
“actually muted or played for the jury” and therefore, because we
cannot properly assess Dejesus’s claim, we should “presume the
correctness of the court’s ruling excluding all of [Dejesus's]
statements” from People’s Exhibit 2. We are not persuaded.
¶ 16 “According to the presumption of regularity, appellate courts
presume that the trial judge did not commit error absent affirmative
evidence otherwise.” LePage v. People, 2014 CO 13, ¶ 15. The
burden is on the party asserting error to “affirmatively show that
[error] occurred.” Id. at ¶ 16. And reviewing courts “must review
and consider the entire record” to determine whether the party
asserting error has met its burden. Id.
¶ 17 The record on appeal contains only an audio version of
People’s Exhibit 2, not the redacted or muted version that was
shown to the jury. To support his argument that the district court
7 erred, Dejesus relies on the statements made by the parties in the
transcript concerning which portions of People’s Exhibit 2 would be
played and what portions would be muted following the district
court’s ruling to exclude Dejesus’s exculpatory statements. Indeed,
after the court overruled defense counsel’s CRE 106 argument, the
prosecutor explained that People’s Exhibit 2 would “[e]ssentially” be
played without audio except for Deputy Smith’s question to
Dejesus, “Do you have anything else on you?” after the large baggie
of methamphetamine was found, but before the five smaller baggies
of methamphetamine was found.
¶ 18 People’s Exhibit 2 was played for the jury during the trial with
no objection from either side that anything outside of what was
previously ordered had been played. Further, the prosecutor
examined Deputy Smith as follows:
PROSECUTOR: Now, after you completed the search in the sally port, did you ask [Dejesus] if he had anything else on him?”
DEPUTY SMITH: Yes, sir.
PROSECUTOR: Did he disclose anything else?
DEPUTY SMITH: No, he said nothing.
8 ¶ 19 And later, the prosecutor asked Deputy Smith about Dejesus’s
interaction with the second deputy who searched Dejesus and
found additional contraband:
PROSECUTOR: Okay. Now, before [the second deputy] conducted his search, did [he] ask the defendant if he had anything that should not come into the jail?
PROSECUTOR: Did [Dejesus] disclose anything that should not come into the jail?
DEPUTY SMITH: He made no statements on it.
¶ 20 The second deputy testified similarly, stating, “I asked
[Dejesus] if he had . . . anything on him that he should not [bring]
into our facility.” When the prosecutor asked if, in response,
Dejesus “disclosed anything else in his pockets,” the second deputy
responded, “No.”
¶ 21 When the video exhibits (People’s Exhibit 2 and Defendant’s
Exhibit A) were played during deliberations, one of the jurors asked
why audio was (mistakenly) being played on Defendant’s Exhibit A
— which was played for the jury right before People’s Exhibit 2 —
and the district court explained, “Yeah, on Exhibit 2, there’s a brief
amount of audio, but on Exhibit A, there’s no audio and on Exhibit
9 2 there’s almost no audio.” Defense counsel adjusted the audio on
Defendant’s Exhibit A and both exhibits were then played for the
jury without any objection from either the prosecutor or defense
counsel.
¶ 22 Accordingly, while the record on appeal contains only a full
audio version of People’s Exhibit 2, and not a redacted or muted
version, the record clearly establishes that the jury viewed the
exhibit with “almost no audio” other than Deputy Smith’s inquiry to
Dejesus as to whether he had anything else in his possession, and
without any of Dejesus’s exculpatory statements throughout the
exchange. Therefore, we conclude that Dejesus has overcome the
presumption of regularity, the record permits review of his claim,
and we will address it.
B. Standard of Review
¶ 23 We review a district court’s evidentiary rulings for an abuse of
discretion. People v. McLaughlin, 2023 CO 38, ¶ 22. A district
court “abuses its discretion when it misapplies the law or when its
decision is manifestly arbitrary, unreasonable, or unfair.” Id. A
district court’s “interpretation of the law governing the admissibility
of evidence,” however, is reviewed de novo. Id.
10 C. Analysis
¶ 24 The rule of completeness provides that, “[w]hen a writing or
recorded statement or part thereof is introduced by a party, an
adverse party may require him at that time to introduce any other
part or any other writing or recorded statement which ought in
fairness be considered contemporaneously with it.” CRE 106; see
People v. Melillo, 25 P.3d 769, 775 n.4 (Colo. 2001) (“The common-
law rule of completeness is codified in CRE 106.”). The purpose of
the rule “is to prevent a party from misleading the jury by allowing
into the record relevant portions of a writing or recorded statement
which clarify or explain the part already received.” McLaughlin,
¶ 24 (citation omitted).
¶ 25 In McLaughlin, our supreme court held that “under CRE 106,
if the prosecution creates a misleading impression by excluding a
defendant’s statements that ought in fairness be considered
contemporaneously with the proffered evidence, then the rule of
completeness requires the prosecution to introduce such
statements.” Id. at ¶ 4. There, the defendant was charged with
felony driving under the influence (DUI) and his defense at trial was
that he had not been driving. Id. at ¶¶ 1, 7. During the trial, the
11 prosecution introduced a bodycam video of the interaction between
the defendant and the arresting deputy but redacted out, over the
defendant’s objection, all of the defendant’s purported “self-serving
hearsay” statements that referenced an unidentified driver. Id. at
¶ 7. Because the redactions implied that the defendant had
“provided no explanation for how his car ended up in the parking
lot,” the court concluded that the district court erred by allowing
the prosecution to introduce the redacted video — it was misleading
and, in fairness, the defendant’s statements should have been
considered contemporaneously with the proffered evidence. Id. at
¶¶ 3-4, 28, 40. Moreover, the court noted its holding was
“consistent with the touchtone of the rule of completeness:
fairness.” Id. at ¶ 31. This was “especially manifest” because the
prosecution excluded the defendant’s statements about the
unidentified driver and then argued at trial that no evidence
supported his theory that another driver existed. Id.
¶ 26 Like in McLaughlin, the version of the bodycam video that was
shown to the jury contained the deputy’s incriminating question to
Dejesus but not Dejesus’s exculpatory statements in response.
After finding a large baggie of methamphetamine in Dejesus’s
12 pocket, Deputy Smith asked Dejesus, “you got [any]thing else?”
However, the prosecution redacted or muted all of Dejesus’s
responses immediately disclaiming full knowledge of the
contraband. Thus, Dejesus’s silence in response to Deputy Smith’s
question suggested to the jury that Dejesus did not have a
contemporaneous explanation for how the drugs got into his pocket.
But this was misleading: Dejesus’s redacted or muted statements
attempted to explain that he had no knowledge of the drugs found
in his pockets and suggested that perhaps they were planted there
by law enforcement or someone else.
¶ 27 Evidence may be admissible under CRE 106 if it explains,
contextualizes, or otherwise cures a misimpression in the admitted
portion. See People v. Short, 2018 COA 47, ¶ 46. As recorded, the
audio version of the video evidence would leave a jury with the
impression that Dejesus was unaware of the presence of drugs in
his pants either because they were planted there by police or
someone else.
¶ 28 To be sure, the error here is not that the misimpression
established that, in fact, the drugs were planted on Dejesus. That
13 question was for the jury to decide, and whether the jury would
have believed Dejesus’s claim is irrelevant to our inquiry.
¶ 29 But because the redacted statements would have cured the
misimpression that Dejesus lacked a contemporaneous explanation,
Dejesus could properly seek admission of the statements under the
rule of completeness. See McLaughlin, ¶ 26. Accordingly, we
conclude that the district court abused its discretion by
misapplying the rule of completeness and erred by allowing the
prosecution to introduce the video without any of Dejesus’s
statements. Having so concluded, we do not address Dejesus’s
alternate contention that the prosecution opened the door to his
statements.
¶ 30 The People, without conducting an error analysis, ask us to
assume “that McLaughlin’s reasoning appli[es] and that the trial
court erred,” but nonetheless conclude that the error was harmless.
But based on the facts presented, we cannot conclude that the error
was harmless.
¶ 31 Where, as here, an error is not of constitutional dimension, we
will reverse unless “the People . . . prove . . . that the error did not
14 substantially influence the verdict or affect the fairness of the trial
proceeding.” James v. People, 2018 CO 72, ¶ 19.
¶ 32 The People argue that the error was harmless given the
overwhelming evidence that Dejesus “had methamphetamine on his
person and possessed it with intent to distribute it.” They point to
the evidence presented at trial relating to the packaging of the
methamphetamine, the “stash of cash” found on Dejesus, and the
drug expert’s testimony that this evidence is indicative of
distribution.
¶ 33 But to prove that Dejesus was guilty of possession with intent
to distribute a controlled substance, the prosecution also had to
prove beyond a reasonable doubt that Dejesus knowingly possessed
a controlled substance. § 18-18-405(1)(a), C.R.S. 2024 (“[I]t is
unlawful for any person knowingly . . . to possess with intent to
manufacture, dispense, sell, or distribute, a controlled substance.”)
(emphasis added). And because of the district court’s error, the
prosecution argued this element was satisfied simply because
Dejesus was “aware of” the drugs in his pocket. But if the jury had
been privy to Dejesus’s emphatic statements immediately
denouncing any knowledge of the drugs found in his pocket, it may
15 have doubted whether he was aware of the drugs in his pocket or
not. This inference would have been bolstered by the undisputed
evidenced that Deputy Smith located no drugs during the initial
search incident to arrest.
¶ 34 But without Dejesus’s statements, his apparent lack of
explanation suggested that he either ignored Deputy Smith’s
question or simply did not have an explanation for the drugs found
in his pockets. Either way, depicting him as having been silent in
response to the deputies finding the drugs created a misleading
impression that was directly relevant to an element of the charged
offense.
¶ 35 Moreover, the People not only injected that misleading
impression into the case, they also extensively relied on it to secure
a conviction. In the People’s opening statement, the prosecutor
repeatedly told the jury that Dejesus did not disclose to the
deputies that he had drugs in his pocket despite being asked about
it. First, the prosecutor described how, after Deputy Smith found
“a baggy full of drugs” in Dejesus’s pocket, Dejesus was asked, “Do
you have anything else?” yet he “did not disclose that he had any
other items in his pockets.” Second, the prosecutor told the jury
16 that Deputy Smith “is going to explain to you what occurred,” “[h]e
will describe how he asked the defendant if he had anything of
concern in his pockets, he will tell you how he located the large
baggie of methamphetamine, he will tell you how he observed the
jail deputy find more baggies once the defendant was inside of the
jail.” Third, the prosecutor told the jury, “The defendant, after
being given multiple opportunities to disclose their presence,
entered the jail with five baggies of meth in his pocket.”
¶ 36 Throughout the testimony the prosecutor continued to
highlight this version of the evidence. The prosecutor asked Deputy
Smith if Dejesus disclosed whether “he had anything else on him”
after Deputy Smith found the large baggie of methamphetamine,
and Deputy Smith responded, “No, he said nothing.” The
prosecutor asked Deputy Smith if Dejesus disclosed to the second
deputy after Dejesus was asked again if he “had anything that
should not come into the jail,” and Deputy Smith responded, “He
made no statements on it.” The prosecutor questioned the second
deputy about whether he asked Dejesus if he “had anything that
shouldn’t come into the jail,” and the second deputy responded that
17 he did ask, and Dejesus did not disclose that he had anything else
in his pockets.
¶ 37 Finally, the prosecutor argued to the jury during its closing
argument that the jurors should “apply what these witnesses told
you,” and “[t]he defendant was aware of those five baggies in his
pocket.” And during the prosecutor’s rebuttal closing argument, he
told the jury, “We had the body cams, and frankly, they are
sufficient. They show you what happened.”
¶ 38 But the version of the bodycam that was shown to the jury
was not what happened. Instead, the district court’s error
permitted the People to create a misimpression that was directly
relevant to an element of the crime charged and the primary issue
at trial. Then, the People compounded the harm from that error by
repeatedly suggesting to the jury that the misimpression was
grounds to discount Dejesus’s defense. And, of course, the People
knew that the impression they had created gave an incomplete
picture of the conversation. In effect, the People moved pretrial to
prohibit the jury from hearing Dejesus’s exculpatory statements
renouncing all knowledge of the contraband found in his pockets
18 and then affirmatively argued throughout the trial that no such
statements existed.
¶ 39 Nor are we persuaded by the People’s argument that the
district court’s error was harmless because Dejesus was still able to
argue his defense that the drugs were planted by pointing out that
Deputy Smith did not find any contraband during the first search
(Defendant’s Exhibit A) and the bodycam video went “on and off” at
very convenient times. But the defendant in McLaughlin also
persisted in his defense that he was not driving — even though his
statements to the contrary had been redacted by the People. See
McLaughlin, ¶ 1. It was because of this that our supreme court
concluded that the district court’s errors required reversal. See id.
at ¶ 19 (“[B]ecause McLaughlin’s defense rested entirely on his
assertion that he was not the one driving the truck, his apparent
lack of explanation for how the truck got to the scene in the
redacted video significantly undermined that defense.”).
¶ 40 Finally, while we do not know how the jury might have viewed
Dejesus’s statements had they been admitted, and do not express
any opinion on the merits of Dejesus’s defense, his apparent silence
in response to the deputies’ contraband discoveries had the
19 potential to create a compelling inference of guilt. See United States
v. Hale, 422 U.S. 171, 176 (1975) (“Silence gains more probative
weight where it persists in the face of accusation, since it is
assumed in such circumstances that the accused would be more
likely than not to dispute an untrue accusation.”); Vanderpauye,
¶ 60 (“It is human nature to expect that a person falsely accused of
a crime . . . will deny the accusation rather than stay silent. Silence
in that context is deafening.”). Therefore, under the circumstances,
we cannot conclude that the error did not substantially influence
Dejesus’s verdict or affect the fairness of the trial proceeding.
Accordingly, we reverse the conviction for possession with intent to
distribute a controlled substance and remand for a new trial.
III. Disposition
¶ 41 The judgment is reversed, and the case is remanded for
further proceedings consistent with this opinion.
JUDGE PAWAR and JUDGE SCHUTZ concur.