24CA1304 Peo v Henderson 05-29-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1304 El Paso County District Court No. 23CR4274 Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Robert Neal Henderson,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE KUHN J. Jones and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025
Michael J. Allen, District Attorney, Doyle Baker, Senior Deputy District Attorney, Tanya A. Karimi, Deputy District Attorney, Amanda Byrne, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant
The Bussey Law Firm, P.C., Timothy R. Bussey, Colorado Springs, Colorado, for Defendant-Appellee ¶1 The People appeal the district court’s order dismissing their
case against defendant, Robert Neal Henderson, entered after the
court denied the prosecutor’s request to continue trial. We reverse
and remand the case to the district court for further proceedings
consistent with this opinion.
I. Background
¶2 Early one morning in September 2023, an alleged domestic
violence altercation occurred between Henderson and his girlfriend,
J.B. (the victim). According to the probable cause affidavit for his
arrest, Henderson took the victim’s personal belongings and
physically attacked her when she attempted to leave his residence.
During the incident, Henderson grabbed the victim by the neck,
causing her to “black[] out for approximately one minute”; threw her
on the ground several times and “into a railing where she hit her
head and saw stars”; and “punched her five or more times in the
face.” The responding officer observed that the victim’s right eye
was swollen shut and “had turned a purplish color,” she had a large
welt on her right temple, and she had another large welt on the
right side of her head.
1 ¶3 The prosecution charged Henderson with felony second degree
assault and three misdemeanor offenses: third degree assault,
harassment, and false imprisonment. See § 18-3-203(1)(i), (2)(b),
C.R.S. 2024 (class 4 felony second degree assault); § 18-3-204(1)(a),
(3), C.R.S. 2024 (class 1 misdemeanor third degree assault);
§ 18-9-111(1)(a), (2)(a), C.R.S. 2024 (class 1 misdemeanor
harassment); § 18-3-303(1), (2), C.R.S. 2024 (class 2 misdemeanor
false imprisonment). Henderson pleaded not guilty on January 2,
2024, and the district court set trial for April 23, roughly two and a
half months before the expiration of his six-month statutory speedy
trial period.
¶4 In connection with this trial date, the court conducted pretrial
readiness conferences on April 1 and April 22. On both occasions,
the prosecutor said that she wasn’t ready to go to trial because she
hadn’t been able to serve the victim with a subpoena to testify at
trial. Specifically, during the April 22 conference, the prosecutor
told the district court that a process server had been attempting to
serve the victim. But while the process server had “some
communication with [the victim] regarding meeting to receive the
subpoena,” he hadn’t been able to meet with her. The prosecutor
2 said that it was unclear whether the victim had told the process
server that she was available at times when she wasn’t really
available “and [was] kind of trying to evade service that way.” Over
Henderson’s counsel’s objection, the court granted the prosecutor’s
request for a continuance and reset trial for June 4.
¶5 The victim was personally served on May 15 with a subpoena
to appear at trial, and both parties announced their readiness to
proceed during a June 3 pretrial readiness conference. However,
the victim didn’t appear on the morning of trial. The prosecutor
asked the district court to issue a bench warrant for the victim’s
arrest but stay its execution until the next morning. She also asked
the court to continue the trial for one day. Alternatively, she asked
the court to impanel the jury as originally planned but to delay the
presentation of evidence until the next morning. The district court
denied the prosecutor’s requests. And after the prosecutor
indicated to the court that she couldn’t prove her case without the
victim’s testimony, the court dismissed the case at Henderson’s
counsel’s request.
3 II. Analysis
¶6 The People contend that the district court erred by denying the
request for a continuance and then dismissing the charges against
Henderson. The People also contend that the court should have
issued a bench warrant and considered the effect of the warrant on
the circumstances pending before it. We agree with these
contentions and, therefore, reverse.
A. Standard of Review and Applicable Law
¶7 We review a district court’s denial of a motion to continue trial
for an abuse of discretion. People v. Ahuero, 2017 CO 90, ¶ 11. To
the extent the court’s decision here involved the interpretation of a
rule of criminal procedure, we review that question de novo
“employing the ‘same interpretive rules applicable to statutory
construction.’” People v. Bueno, 2018 CO 4, ¶ 18 (quoting People v.
Corson, 2016 CO 33, ¶ 44).
¶8 A court abuses its discretion if its decision is manifestly
arbitrary, unreasonable, or unfair, or is based on a
misunderstanding or misapplication of the law. People v. Senette,
2018 COA 105, ¶ 8. “[A]n unreasoning and arbitrary insistence
upon a trial date in the face of a justifiable request for delay can
4 amount to an abuse of discretion . . . .” People v. Hampton, 758
P.2d 1344, 1353 (Colo. 1988). But “[t]here are no ‘mechanical tests’
for determining whether a trial court abuses its discretion by
denying a continuance.” People v. Brown, 2014 CO 25, ¶ 20
(quoting Hampton, 758 P.2d at 1353). Rather, we consider the
totality of the circumstances of the case. Id. In doing so, we must
evaluate the circumstances confronting the court at the time the
motion to continue was filed, including the reasons underlying the
motion. Ahuero, ¶ 11. “When the continuance is sought to locate a
missing witness, the court may consider whether the movant
exercised due diligence to secure the witness’s attendance.”
Senette, ¶ 9. Other factors relevant to our inquiry are the prejudice
that the movant would suffer from the denial of the continuance,
whether the continuance would cure that prejudice, and the
potential prejudice to the nonmoving party if the continuance were
granted. Id.
¶9 Even if a district court abuses its discretion by denying a
motion to continue, the movant must also “demonstrate actual
prejudice arising from [the] denial of the continuance.” People v.
Garrison, 2017 COA 107, ¶ 21 (quoting People v. Denton, 757 P.2d
5 637, 638 (Colo. App. 1988)). Otherwise, the error is harmless and
therefore doesn’t warrant reversal. See People v. Hagos, 2012 CO
63, ¶ 12 (“[W]e review nonconstitutional trial errors that were
preserved by objection for harmless error.”); Crim. P. 52(a).
B. Additional Background
¶ 10 As noted above, the district court held a pretrial readiness
conference on June 3. The prosecutor informed the court that the
victim had been personally served with a subpoena to appear at
trial the next day and that the prosecution was ready to proceed.
¶ 11 However, the victim failed to appear in court on the morning of
trial and wasn’t responding to the victim advocate’s calls and
messages. The prosecutor informed the court that she was
nonetheless expecting the victim to testify in the case because the
victim was under a subpoena. The prosecutor said that while she
“had initially not been in good communication with [the
victim], . . . [she] was able to get [the victim] on the phone [the day
before the trial].” During that conversation, the prosecutor provided
information regarding the place and time of trial, and the victim
confirmed that she intended to come to court. The prosecutor
6 noted that the victim was aware that there was “always a potential
[that] the [c]ourt could issue a warrant if she [didn’t] show [up].”
¶ 12 Then, the prosecutor requested a bench warrant with a stay of
execution until the next morning and a short one-day continuance.
She explained that Henderson’s speedy trial deadline was set to
expire on July 2, and June 25 was the only other available trial
setting within that deadline.
¶ 13 The court clarified that June 25 wasn’t available because a
reverse transfer hearing in an unrelated matter had been set for
that day. The court clerk also said that the jury commissioner had
indicated that if the court were to continue the trial until June 5 as
requested by the prosecutor, jury selection wouldn’t be guaranteed
because the jury pool for that day was smaller than usual and there
were three county court cases on the docket scheduled to call jurors
before Henderson’s case. Specifically, the clerk said,
We would have to wait till those judges pick their jurors, and then we will get whatever that is left over if there’s any left over or if, you know, their trial goes away. So we will have to wait to see the results for the other judges first before we can get a panel for tomorrow.
7 ¶ 14 In response to this information, the prosecutor asked to move
forward with picking a jury that morning, but starting the
presentation of evidence the next morning, at which time the stayed
bench warrant for the victim could also be addressed. In support,
the prosecutor reiterated that the victim had been personally served
with a subpoena and that she had spoken with the victim just
recently.
¶ 15 The district court denied this specific request:
We were set for trial on April 1. Defense was ready. People were not ready because they didn’t have [the victim] served. So we set it over to April 22[]. We were ready for trial on April 22[], and the People, again, had made efforts to serve [the victim] and were unable to do so, and we set it over for trial today.
The . . . Court finds [that] the People certainly have been trying to gain the cooperation of [the victim] but are unable to do so. We’ve now been waiting over an hour for her to appear, for her to return your . . . victim advocate[’s] call to say, I’m sorry. I slept in. I had an emergency. I need an accommodation, and that hasn’t happened.
¶ 16 Additionally, the court was concerned that granting the
prosecution’s request would be an inconvenience to jurors:
And so we’re set for trial today, and the Court of Appeals may disagree with me. They may
8 think it’s a de minimis concern that I think it’s important that I not call jurors up here and take two days of their time to serve as jurors without anything more than the hope that [the victim] is going to appear.
¶ 17 Finally, the district court also denied the prosecutor’s renewed
request that the entire trial be pushed back one day:
Well, I don’t have . . . a trial pool for tomorrow. We summoned our pool for today, and so what I’ve been told is that we can wait until the county court has gone through their pool, see if . . . we could bring in a pool. We may or may not be able to.
But, again, now we’ve pushed the trial back a day, and I have to get this trial done by Friday[, June 7]. [During the June 3 pretrial readiness conference, the prosecutor] told me this was a three-[day], possibly four-day trial with deliberations. I can’t accommodate that.
The court summarized its decision to deny a continuance as
follows:
We don’t have a [jury] pool available. So, again, the plan is we’re going to hope for a jury pool. We’re going to hope for [the victim] cooperating with a court ordered subpoena. Hope is not a plan that I can make decisions on, and the request is denied.
9 C. The District Court Erred by Denying the Prosecutor’s Continuance Request and Dismissing the Case
¶ 18 The People contend that the district court erred by “denying
the prosecution’s request to continue trial for [the] unavailable
[victim-]witness because [the court] failed to issue a bench warrant
as required under the rules of criminal procedure and because it
failed to weigh the effect the bench warrant would have [had] in
gaining the witness’s presence for trial.” In advancing this
argument, the People direct our attention to Senette.
¶ 19 In that case, the trial court denied the prosecutor’s request for
a one-week continuance and dismissed the charges against Senette
after the victim-witness failed to appear at trial. Senette, ¶¶ 2, 4.
On the prosecution’s appeal, a division of this court reversed the
dismissal order and remanded for reinstatement of the charges. Id.
at ¶ 24. The division concluded that the trial court abused its
discretion by denying the prosecutor’s continuance request because
that ruling was arbitrary and based on the court’s misapplication of
the law. See id. at ¶¶ 10-19.
¶ 20 Specifically, “[i]t was arbitrary for the trial court to deny the
requested continuance without recognizing the prosecutor’s
10 diligence in attempting to procure [the witness’s] attendance at
trial.” Id. at ¶ 10. Indeed, the division observed, “the prosecutor
and the prosecution’s investigators knew where [the witness] lived
and worked; had been in contact with [the witness] by phone and
text message throughout the case, including on the morning of trial;
and had personally served her with a subpoena to attend trial.” Id.
¶ 21 The Senette court concluded that the trial court misapplied the
law when it failed to grant the prosecutor’s request for a bench
warrant and when it determined that a continuance would “do little
to procure [the witness’s] attendance at trial without placing any
weight on the fact that an active bench warrant during the period of
any continuance would help compel [the witness’s] attendance and
make it far more likely she would appear at the rescheduled trial.”
Id. at ¶¶ 12, 15. Finally, the division concluded that the trial
court’s denial of a continuance was arbitrary because while the
court concluded that the requested continuance would prejudice
Senette, the court didn’t consider that the prosecution would be
unable to prove its case without the witness whose testimony was
essential to the case, and whose attendance the prosecution could
have compelled with a bench warrant. Id. at ¶¶ 16, 19.
11 ¶ 22 We agree that the rationale from Senette applies to this case.
We conclude that the district court abused its discretion by denying
a one-day continuance because the court (1) misapplied the law by
not issuing a bench warrant for the victim’s arrest and (2) failed to
consider the facts suggesting that the continuance was warranted.
1. The District Court Misapplied the Law in Handling the Prosecutor’s Request for Issuance of a Bench Warrant
¶ 23 When a subpoenaed witness doesn’t appear at trial, the court,
at the request of the subpoenaing party, “shall issue a bench
warrant directing that any peace officer apprehend the person and
produce the person” for trial. Crim. P. 17(h)(2)(A) (emphasis added).
¶ 24 Here, when the subpoenaed victim failed to appear on the
morning of trial, the prosecutor asked the court three times to issue
a bench warrant. Yet the district court never explicitly addressed
those requests — let alone issued a bench warrant — before
denying a continuance and dismissing the case against Henderson.
Consequently, the court misapplied the law because the plain
language of Rule 17(h)(2)(A) required the court to issue a bench
warrant. See Senette, ¶ 12 n.1 (“[The rule] does not give a trial
court discretion to issue a warrant to compel the attendance of a
12 properly served witness.”); People v. Huckabay, 2020 CO 42, ¶ 16
(“[T]here is a presumption that the word ‘shall’ when used in a
statute is mandatory.” (quoting Mook v. Bd. of Cnty. Comm’rs, 2020
CO 12, ¶ 80)).
¶ 25 True, while Senette involved a request for an active bench
warrant, the prosecutor here requested a warrant with its execution
stayed for one day. Nonetheless, we’re not persuaded by
Henderson’s argument that “[b]y asking for a stayed bench warrant
and not an active warrant, the [prosecutor] was literally waiving any
of the process and remedies offered by [Rule 17(h)(2)].” In essence,
Henderson posits that Rule 17(h)(2) didn’t apply to the prosecutor’s
request because the specific remedy that she sought wasn’t
“authorized” by that provision.
¶ 26 But Henderson cites no authority supporting the sweeping
proposition that a request for a stayed bench warrant seeks a
separate and distinct remedy outside the ambit of Rule 17(h)(2),
precluding the prosecutor from obtaining a warrant under that rule.
In any event, the prosecutor here repeatedly asked for the issuance
of a bench warrant for the victim. Under Rule 17(h)(2), absent
exceptions not applicable here, the district court had to grant that
13 request. Nothing in the rule precluded the court from staying any
issued warrant until the next morning; to the contrary, other courts
have granted that exact relief. See, e.g., People v. Myers, 969 P.2d
701, 702 (Colo. 1998) (acknowledging in an attorney discipline
action that the court in the underlying criminal case stayed a bench
warrant for the attorney’s arrest). Finally, there’s no indication in
the record that the district court had any concern about the effect
of the requested stay on its ability to enforce the subpoena under
Rule 17(h)(2). Accordingly, Henderson’s argument doesn’t alter our
conclusion that the court misapplied the law by not issuing the
requested bench warrant for the subpoenaed nonappearing witness.
¶ 27 Having reached this conclusion, we now turn to the court’s
denial of the continuance request itself.
2. The District Court Failed to Fully Examine the Circumstances Before Denying a Continuance
¶ 28 Like the trial court in Senette, the district court here erred in
its assessment of the factual circumstances surrounding its
decision not to continue the case. For starters, the court denied the
prosecutor’s request after observing that the trial was initially set
for April 1 and that it had already been continued twice, first to
14 April 23 and then to June 4. However, as explained above, April 23
was the original trial date, and the court only conducted a pretrial
readiness conference on April 1. During that proceeding, the court
reset the pretrial readiness conference to April 22 because the
prosecution was still attempting to serve the victim with a
subpoena. When the victim still hadn’t been served by the reset
conference, the court continued the trial to June 4. Thus, to the
extent the court determined that a continuance wasn’t warranted
because Henderson’s trial had already been continued twice, that
determination is contradicted by the record.
¶ 29 Next, the district court failed to consider certain facts
indicating that the requested continuance would have allowed the
prosecutor to procure the victim’s attendance in court. For
example, in noting that the prosecutor had been diligent but
ultimately unsuccessful in her attempts “to gain the cooperation” of
the victim, the court told the prosecutor that it “sound[ed] like [she]
maybe had some difficulty all along” and emphasized that the
victim advocate hadn’t been able to reach the victim on the morning
of trial. But there’s no indication that the court considered that the
prosecutor had spoken with the victim just the day before. During
15 that conversation, the prosecutor told the victim that she was
required to appear in court the next morning and confirmed the
courtroom where the trial would be held. The victim confirmed that
she intended to appear at trial and that she knew where to go given
that “[s]he had been here once initially in the case to modify the
protection order.” The prosecutor also informed the court that at
the time of the case, the victim worked late nights and it was
possible that she had overslept.
¶ 30 More importantly, because the district court declined to first
address the prosecutor’s request for a bench warrant, the court also
didn’t consider whether the warrant would make it more likely that
the victim would appear at the rescheduled trial. See Senette, ¶ 12.
After all, the prosecutor knew where the victim lived and was in
contact with her. The prosecutor had even warned the victim that
the court could issue a bench warrant for her arrest if she failed to
comply with her subpoena. Under these circumstances, the district
court should have considered whether the requested bench warrant
and a one-day continuance would have allowed the prosecutor to
use the threat of arrest associated with the warrant to compel the
victim’s attendance in court.
16 ¶ 31 In arguing otherwise, Henderson again points out that the
prosecutor only requested a stayed bench warrant and asserts that
this warrant would have been futile given that it would have expired
the next day “by operation of law under [Rule 17(h)(2)(A)(ii)] due to
cancellation of the trial.” But this assertion presumes that only an
active bench warrant would have been effective in securing the
victim’s appearance, and we have already rejected that proposition
above. Further, even if the victim were to not appear at the
rescheduled trial despite the stayed warrant, that doesn’t mean that
the prosecutor couldn’t ask for further relief from the court. Thus,
Henderson’s argument that the requested bench warrant would
have been “illusory” because the court would have canceled the trial
anyway is based on speculation.
¶ 32 This brings us to the People’s final argument: the district court
abused its discretion by giving more weight to the possible
inconvenience to prospective jurors than to the prejudice of
dismissal to the prosecution. In evaluating the prosecution’s
request, the court reasoned that a continuance was improper
because the court didn’t have a jury pool for the next morning, and
regardless, the trial couldn’t be completed by June 7, the only
17 available three-day period in the court’s calendar before the end of
Henderson’s speedy trial deadline the following month.
¶ 33 It’s true that the jury commissioner was uncertain whether a
jury pool would be available if jury selection was continued to June
5. But while the jury commissioner indicated that there was no
guarantee that there would be a sufficient jury pool left after the
county court docket, there was still a possibility that a jury pool
would be available. The district court concluded that this
uncertainty meant that continuing the case would be futile because
there was no pool from which a panel could be drawn. The court
also denied the prosecutor’s request for a jury to be selected from a
pool summoned for the June 4 trial on the grounds that imposing
an extra day of jury duty would be inconvenient to jurors. Thus,
the court first declined to impanel a jury from the jury pool that was
readily available on the morning of trial and then it denied a
continuance because there was a chance that a pool wouldn’t be
available the next morning.
¶ 34 Likewise, there was considerable uncertainty over whether the
trial could be completed by June 7 if the court continued it to June
5. Specifically, after the court noted that it couldn’t accommodate
18 “a three-[day], possibly four-day trial with deliberations,” the
prosecutor clarified, “[T]he People never said it would be four days.
I said it might spill over to the morning of the [third day], but I
believe that our testimony would be done by the morning of the
second day [i.e., June 6].” The court then said,
That’s what I heard. But what you fail to take into account is the Defense case and [the] time for deliberation[s]. I’m out of the office next week. And so this case would have to end by Friday[, June 7], and . . . from what I understood, [the] parties were expecting, at best, [that] evidence would be concluded on the third day, which would be Friday, if we were to start tomorrow. That’s even with starting early in the morning, which we’re not going to be able to.
It doesn’t appear that the court confirmed with defense counsel the
anticipated length of Henderson’s case-in-chief. Instead, the court
presumed that the presentation of all evidence wouldn’t conclude
until June 7, and therefore, there wouldn’t be enough time left for
the jury to deliberate and return a verdict by the end of that day.
¶ 35 We recognize that the court had to balance significant
competing interests, including the prosecution’s interest in having
the victim testify in the case, Henderson’s statutory right to speedy
trial, the availability of a jury pool, and the court’s limited
19 availability. As a general rule, the difficulties inherent in
“assembling the witnesses, lawyers, and jurors at the same place at
the same time . . . counsel[] against [a] continuance[] except for
compelling reasons.” Ahuero, ¶ 12 (quoting Morris v. Slappy, 461
U.S. 1, 11 (1983)). And to be sure, there is nothing wrong with a
court considering these types of factors in deciding how to manage
its docket. See People v. Sandoval-Candelaria, 2014 CO 21, ¶ 26
(“[O]ur cases make clear that trial courts have broad discretion to
manage their dockets.”).
¶ 36 However, while we can’t say that — standing alone — the
district court incorrectly weighed the impact of the prosecution’s
plan on the jurors against the impact on the prosecution’s case,
these scheduling pressures all appear to have contributed to the
court’s decision to dismiss the case.
¶ 37 Regardless, this point does not alter the conclusion we reach
above: the court misapplied the law by not issuing a bench warrant
for the nonappearing subpoenaed victim at the prosecution’s
request. And at that point, it also should have examined whether
the warrant was likely to obtain the victim’s presence at trial.
Under these circumstances, then, we conclude that the court
20 abused its discretion by denying the requests for a warrant and a
continuance. Given that the error resulted in dismissal of the
People’s case, we conclude the error was not harmless.1 We
therefore conclude that the charges must be reinstated.
III. Disposition
¶ 38 The judgment of dismissal is reversed, and the case is
remanded to the district court to reinstate the charges against
Henderson and to conduct further proceedings consistent with this
opinion.
JUDGE J. JONES and JUDGE MOULTRIE concur.
1 In his briefing, Henderson contends that because the prosecutor
didn’t pursue a continuance in accordance with section 18-1-405(6)(g)(I), C.R.S. 2024, the People can’t establish that they suffered prejudice as a result of the district court’s decision, and additionally, they are precluded from seeking reinstatement of the charges. This argument misses the mark by a wide margin. The record clearly shows that after the court denied a continuance, the court dismissed the charges because the prosecutor couldn’t prove her case without the victim’s testimony. Indeed, the prosecutor explicitly conveyed that point to the court. So the prejudice to the People is obvious — their charges against Henderson were dismissed as a consequence of the court’s decision not to push back the trial for one day. And because these “two decisions simply cannot be separated,” the proper remedy on remand is for the court to reinstate the charges. People v. Senette, 2018 COA 105, ¶¶ 21, 24.