Peo v. Leary

• Court: Colorado Court of Appeals
• Decided: May 15, 2025
• Docket: 21CA1873
• Status: Unpublished

Opinion

21CA1873 Peo v Leary 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1873 Elbert County District Court No. 18CR95 Honorable Gary M. Kramer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Leary,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A Opinion by CHIEF JUDGE ROMÁN Martinez* and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 15, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Christopher Leary, appeals the judgment of

conviction entered after a jury found her guilty of first degree

murder.1 We affirm.

I. Background

¶2 Defendant lived with her girlfriend, C.A.; their infant; and

C.A.’s family. C.A.’s mother, J.A., would often become drunk and

violent around C.A. and defendant.

¶3 One day, while defendant was at work, an intoxicated J.A.

became aggressive around C.A. and their infant. J.A.’s aggressive

behavior continued after defendant returned home.

¶4 Defendant “snapped” and confronted J.A. in the hallway. J.A.

went to her bedroom and closed the door. Defendant kicked open

J.A.’s bedroom door, knocked her to the floor, and repeatedly

punched J.A. Defendant briefly stopped, left the room, and

retrieved a knife. Defendant returned to J.A.’s bedroom and

stabbed J.A. Defendant removed the knife, stabbed the knife into

1 Christopher Leary now goes by the name Claire Shadowdancer

and uses she/her pronouns. Accordingly, we follow the parties’ convention using the defendant’s preferred pronouns.

1 the closet door, and walked out the front door. J.A. died at the

scene.

¶5 A jury convicted defendant of first degree murder.

II. Analysis

¶6 Defendant contends the district court erred (1) by violating her

statutory and constitutional rights to a speedy trial; (2) by not

correcting alleged prosecutorial misconduct in rebuttal argument

when the prosecutor improperly argued that the jury must acquit

defendant of first degree murder before considering lesser charges;

and (3) because a WebEx audio issue violated her right to a public

trial.

A. Constitutional and Statutory Speedy Trial Rights

1. Standard of Review

¶7 We review the district court’s denial of a motion to dismiss for

a violation of the defendant’s speedy trial rights as a mixed question

of law and fact. People v. Curren, 2014 COA 59M, ¶ 13. We will not

disturb the district court’s factual findings underlying its speedy

trial decision if those findings are supported by the record. Id.

However, we review de novo the district court’s application of those

facts to the controlling legal standard. Id.

2 2. Additional Background

¶8 The prosecution filed charges against defendant in November

2018. Defendant pled not guilty on July 15, 2019, and the trial was

originally set for December 2019. A series of continuances occurred

over the next two and a half years, many, though not all, the result

of the COVID-19 pandemic.

a. November 2019 Continuance

¶9 On November 18, 2019, defendant moved to continue the trial

and waived the existing speedy trial deadline. She also agreed to

toll the speedy trial deadline until December 2, and the new speedy

deadline was set for June 2, 2020. The district court reset the trial

for March 30, 2020.

b. March 2020 — COVID-19 Pandemic Starts

¶ 10 In March 2020, the COVID-19 pandemic impacted the

operation of all Colorado courts. Due to public health concerns, the

chief justice of the Colorado Supreme Court issued an order

suspending all jury trials in the state unless the case had an

imminent speedy trial deadline. The chief judge of the Eighteenth

Judicial District, where the trial was set, issued an order shutting

down juror summonses for trials set through May 15, 2020.

3 ¶ 11 In this case, the court declared two mistrials, over defendant’s

objections, in June and September 2020. The mistrials were

declared due to COVID-19 concerns and the chief justice’s and chief

judge’s orders.

¶ 12 Significantly, at a hearing on January 5, 2021, the court

declared a third mistrial due to the COVID-19 pandemic. The court

stated on the record that, “[i]n a prior conversation with counsel, we

have reset this matter, and I just want to make sure that we are all

on the same page. We have . . . reset this matter to commence on

May 4th.”2 Both parties agreed. Near the end of the hearing,

defendant objected to the mistrial, stating that “[t]he defense

maintains its objection to the court issuing a mistrial” because it

was “a continuing violation of [defendant’s] constitutional and

statutory right to a speedy trial.”

¶ 13 At a status conference on April 1, 2021, the parties discussed

the logistics of conducting the trial in May under the required six-

foot social distancing guidelines. Recognizing that it would still not

2 A transcript of the conversation in which the parties agreed to

reset the trial to May 4, 2021, is not included as part of the record on appeal.

4 be possible to conduct the trial with the social distancing

requirements, the court advised that it would be forced to declare

another mistrial if conditions did not change.

¶ 14 At a status conference on April 16, 2021, the court stated it

wanted to confirm the trial dates. Both parties agreed that the trial

had previously been reset to begin on July 7, 2021. The

conversation in which the parties agreed to the July 7 trial date is

not included in the record on appeal.

¶ 15 On May 4, 2021, the district court declared another mistrial

due to the COVID-19 pandemic. Defendant objected and requested

that the court dismiss the case because the July 2021 trial date

would violate defendant’s right to speedy trial. The district court

denied the objection.

¶ 16 In July 2021, the COVID-19 restrictions were lifted, and

defendant’s case proceeded to trial.

3. Discussion

¶ 17 Defendant challenges whether the district court violated both

her constitutional and statutory rights to a speedy trial. We first

analyze her constitutional contention, then turn to her statutory

contention.

5 a. Constitutional Speedy Trial Right

¶ 18 Defendant contends the district court violated her

constitutional right to a speedy trial under both the United States

and Colorado Constitutions because (1) the delay between her

arrest and trial was presumptively prejudicial, and (2) the public

health crisis resulted in more onerous jail conditions. We discern

no constitutional speedy trial violation.

¶ 19 The United States and Colorado Constitutions guarantee all

criminal defendants the right to a speedy trial. U.S. Const. amend.

VI; Colo. Const. art. II, § 16; Moody v. Corsentino, 843 P.2d 1355,

1363 (Colo. 1993). We apply a four-factor balancing test to assess

whether a defendant’s constitutional speedy trial rights were

violated: (1) the length of the delay; (2) the reasons for the delay; (3)

the defendant’s assertion of the right; and (4) the prejudice to the

defendant. Moody, 843 P.2d at 1363 (citing Barker v. Wingo, 407

U.S. 514, 530 (1972)); see also People v. Chavez, 779 P.2d 375, 376

(Colo. 1989) (noting the Barker test also governs the determination

of a speedy trial claim under the Colorado Constitution). The

defendant bears the burden of establishing that the defendant’s

6 constitutional speedy trial rights have been denied. Moody, 843

P.2d at 1363.

¶ 20 Applying the Barker factors, we conclude that there was no

violation of the defendant’s constitutional speedy trial right.

¶ 21 Despite the considerable length of the delay here, defendant

requested the first continuance, and it is thus attributable to her.

See People v. Glaser, 250 P.3d 632, 647 (Colo. App. 2010)

(attributing delay caused by defense counsel’s tactical decision to

seek a continuance to the defendant).

¶ 22 Furthermore, courts across the country have considered and

rejected assertions of constitutional speedy trial error where the

COVID-19 pandemic was the source of the trial’s delay. See United

States v. Keith, 61 F.4th 839, 853 (10th Cir. 2023) (holding that

COVID-19-related delays are a “truly neutral justification — not

favoring either side”); United States v. Walker, 68 F.4th 1227, 1238

(9th Cir. 2023) (“The pandemic, not the prosecution, caused the

delay.”); United States v. Pair, 84 F.4th 577, 584-85 (4th Cir. 2023)

(recognizing that the pandemic was a valid and justifiable reason for

delaying trial).

7 ¶ 23 Therefore, we reject her contention that her constitutional

speedy trial right was violated because a portion of the delay was

attributable to defendant, and the pandemic was a valid and

justifiable reason for delaying a trial.

b. Statutory Speedy Trial Right

¶ 24 But defendant also contends the district court violated her

statutory speedy trial right by declaring a mistrial on January 5,

2021, and resetting the trial for May 4, 2021, in excess of the three

months allowed by Colorado’s speedy trial statute. See People v.

Sherwood, 2021 CO 61, ¶ 3. Under these circumstances, we

perceive no abuse of discretion.3

¶ 25 Colorado’s speedy trial statute requires that a defendant be

brought to trial within six months from the entry of a not guilty

plea. § 18-1-405(1), C.R.S. 2024. This deadline may be tolled in

some circumstances, including, as relevant here, for the “period of

delay caused by any mistrial, not to exceed three months for each

3 Defendant’s opening brief notes that she objected to the mistrial

orders but that “even if the court’s mistrial orders were sound, the trial court exceeded the speedy trial statute’s parameters” by setting trial for May 2021. Because defendant developed no argument beyond this point, we decline to consider it. See Am. Fam. Mut. Ins. Co. v. Am. Nat’l Prop. & Cas. Co., 2015 COA 135, ¶ 42.

8 mistrial.” § 18-1-405(6)(e); see Crim. P. 24(c)(4); Sherwood, ¶¶ 1, 41

(explaining that a tolled period acts as a “time-out” on the speedy

trial clock).

¶ 26 At the January 5, 2021, hearing, both parties confirmed that

they had earlier agreed to the May trial date; however, this

agreement was not included as part of the record on appeal. At the

time, defendant made only a general objection to the May trial date.

As a result, defendant’s claim of error relies on the absence of any

record support explaining why the district court reset the case

outside of the period authorized by statute. Thus, defendant’s

argument asks us to assume the district court committed error

while omitting from the record the conversation in which the parties

discussed the May 2021 trial date. This we will not do.

¶ 27 It is the appellant’s duty to designate those portions of the trial

record and transcripts which are necessary for review on appeal.4

4 We note that defendant had ample opportunity to supplement the

record on appeal to include the omitted transcript. Indeed, defendant asked for — and was fully or partially granted — authorization to supplement the record on numerous occasions. However, despite multiple requests to supplement the record, defendant does not appear to have asked for leave to provide the missing transcript of the conversation concerning the May 2021 trial date.

9 See C.A.R. 10(d); see also Northstar Project Mgmt., Inc. v. DLR Grp.,

Inc., 2013 CO 12, ¶ 16; Till v. People, 581 P.2d 299, 299 (Colo.

1978). Because defendant failed to provide a complete record on

appeal, we must presume that the district court’s findings and

decision to reset the trial for May 2021 are supported by the

evidence. See People v. Morgan, 606 P.2d 1296, 1300 (Colo. 1980).

¶ 28 In the absence of any evidence in the record to the contrary,

we presume that the district court acted in accordance with the law

when it reset defendant’s trial to May 2021. See People v. Bishop, 7

P.3d 184, 188 (Colo. App. 1999) (holding that, when a defendant

fails to provide those portions of the record necessary to

substantiate their claim, “appellate courts must presume that the

actions of the trial court were correct”).

B. Prosecutorial Misconduct

¶ 29 Next, defendant contends that the prosecution committed

prosecutorial misconduct when it erroneously stated during

rebuttal closing that the jury was supposed to consider the lesser

included offenses, and the court erred by failing to correct it. We

conclude that while error occurred, it does not rise to the level of

plain error.

10 1. Standard of Review

¶ 30 When reviewing a claim of prosecutorial misconduct, we

consider whether the prosecutor’s conduct was improper and

whether any impropriety requires reversal. Wend v. People, 235

P.3d 1089, 1096 (Colo. 2010). When, as here, a claim of error is not

preserved by a contemporaneous objection, we may reverse only if

plain error occurred. Hagos v. People, 2012 CO 63, ¶ 14. An error

is plain if it is obvious, substantial, and so undermined the

fundamental fairness of a trial as to cast serious doubt on the

reliability of the judgment of conviction. People v. Dominguez-

Castor, 2020 COA 1, ¶ 85. Prosecutorial misconduct constitutes

plain error only if it is “flagrantly, glaringly, or tremendously

improper.” Id. at ¶ 86 (citation omitted).

2. Additional Background

¶ 31 Prior to closing arguments, the court instructed the jury on

the elements of first degree murder, second degree murder, and

manslaughter. The court also provided the jury with a correct “soft

transition” bridge instruction:

If you are not satisfied beyond a reasonable doubt that [the defendant] is guilty of the offense of Murder in the First Degree, [she]

11 may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged if the evidence is sufficient to establish [her] guilt of the lesser offense beyond a reasonable doubt.

¶ 32 In its closing argument, the prosecution argued that defendant

acted consciously and deliberately and that therefore she was guilty

of first degree murder. Meanwhile, the defense primarily argued

that the evidence demonstrated only that the defendant could be

found guilty of second degree murder or manslaughter.

¶ 33 The prosecution then addressed the court’s bridge instruction

during its rebuttal closing:

This instruction, we call it a “lesser-bridge instruction,” and it’s the instruction right after murder in the first degree. And what it explains is that you only go on to consider lesser offenses, like second degree murder, if you are not satisfied beyond a reasonable doubt that [the defendant] is guilty of the offense of murder in the first degree. So you don’t even consider second degree or provocation or manslaughter until you are satisfied that [she] did not commit murder in the first degree beyond a reasonable doubt.

(Emphasis added.)

12 ¶ 34 While the statements misstated Colorado law, the prosecution

did not refer again to the bridge instruction, and defense counsel

did not contemporaneously object to the prosecution’s statement.

¶ 35 Defendant asserts the prosecution engaged in misconduct

because its statement that “you don’t even consider second

degree . . . or manslaughter until you are satisfied that [the

defendant] did not commit murder in the first degree beyond a

reasonable doubt,” essentially told the jurors that they must acquit

the defendant of first degree murder before considering any of the

lesser charges. Because Colorado is a “soft transition” state, we

agree that the prosecutor’s statement constituted error. See People

v. Vasquez, 2022 COA 100, ¶ 66 (noting that the jury does not have

to acquit a defendant of the greater offense before considering any

lesser included offenses). This does not end our analysis, however.

We turn next to whether the error was substantial.

¶ 36 We conclude the error was not reversible under the plain error

standard because it was not so substantial as to undermine the

fundamental fairness of the trial as to cast serious doubt on the

13 reliability of the judgment of conviction. See Dominguez-Castor,

¶ 85.

¶ 37 The statement was isolated in nature, it substantially tracked

the language of the instruction, and the prosecutor did not repeat

the statement during the trial. See People v. Estes, 2012 COA 41,

¶ 41 (discerning no prosecutorial misconduct when the prosecutor’s

comment was made only at the outset of closing argument and was

not repeated during trial); People v. Munsey, 232 P.3d 113, 124

(Colo. App. 2009) (noting that when there are no other allegations of

prosecutorial misconduct during closing, it is unlikely that an

isolated portion of closing argument substantially influenced the

verdict). The district court also provided the jury with the proper

bridge instruction before deliberation. See People v. Payne, 2019

COA 167, ¶¶ 47-49 (noting error was harmless in part because the

court properly instructed the jury).

¶ 38 Moreover, the weight of the evidence supporting the jury’s first

degree murder verdict was overwhelming. See People v. Garcia,

2023 COA 58, ¶ 60 (prosecutorial misconduct in closing did not

warrant reversal under plain error standard when, among other

things, overwhelming evidence supported the guilty verdict). At

14 trial, when asked if her intention was to kill the victim, defendant

responded, “Yes.” C.A. described the assault, noting that once

defendant stopped attacking her mother, defendant left the

bedroom and grabbed the knife. C.A. then recounted how the

defendant returned to her mother’s bedroom and stabbed her

mother in the throat.

¶ 39 Indeed, defendant’s own statements prior to trial also support

the overwhelming nature of the evidence. After being taken into

custody, defendant told investigators:

• “In my head I’ve already gone too far . . . . So in my head

if I’m gonna go to jail or prison or whatever I might as

well as do it for something that’s worth it.”

• “So that’s when I grab my knife, [C.A.’s] still trying to

stop me.”

• “And when I finally get [C.A.] out of the way that’s when

I’m in the room and I just stab her in the neck.”

¶ 40 Defendant further admitted that the victim was not armed at

the time of the incident and that she did not withdraw the knife

from the victim’s neck until she could hear the victim “choke on her

own blood” because she “thought that would be enough.”

15 ¶ 41 For these reasons, we conclude that the error did not so

undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction.

C. Public Trial

¶ 42 Finally, defendant argues that she was denied her right to a

public trial because an audio issue prevented WebEx viewers from

hearing the testimony of two witnesses. We discern no error.

¶ 43 We review a district court’s decision to close the courtroom as

a mixed question of law and fact. People v. Jones, 2020 CO 45,

¶ 14. Accordingly, “we accept the trial court’s findings of fact

absent an abuse of discretion, but we review the court’s legal

conclusions de novo.” Id. (quoting People v. Hassen, 2015 CO 49,

¶ 5). The erroneous denial of a public trial constitutes structural

error. Hassen, ¶ 7 (citing Hagos, ¶ 10).5

5 Because we conclude that the audio issue did not constitute a

closure of the courtroom, we decline to address the parties’ arguments concerning waiver and plain error review.

16 2. Discussion

¶ 44 On the fourth day of the trial, the court heard testimony from

two individuals: Deputy Joshua Bjork, one of several officers

dispatched to the scene, and Moriah Bargas, the crime scene

investigator. After both witnesses had testified, the prosecution

informed the court that viewers on WebEx said that they could not

hear the morning’s testimony because the proceedings had been

muted. The problem was resolved, and the proceedings resumed

without further incident. Defendant did not object or seek any

remedy for the audio issue at that time.

¶ 45 According to defendant, the inadvertent muting of the

proceedings was tantamount to a court-ordered closure; thus, the

court was obligated to make findings as required by Waller v.

Georgia, 467 U.S. 39, 44-47 (1984).6

6 Under Waller v. Georgia, 467 U.S. 39, 44-47 (1984), a district

court is obligated to make the following findings on the record when it orders a court closure to the public: (1) the party seeking to close the proceeding must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the court must consider reasonable alternatives to closing the proceeding; and (4) the court must make findings adequate to support the closure.

17 ¶ 46 But there was no court-ordered closure of the courtroom.

Despite the problems with the audio during a portion of the

livestream, the courtroom was open to any member of the public

who wanted to attend the trial in person. Indeed, the record

indicates that the prior COVID-19 restrictions were lifted before the

trial began, and defendant does not argue that the courtroom was

not open to members of the public. That leaves only the issue of

technical difficulties for those watching the livestream.

¶ 47 Other divisions of this court have determined that technical

difficulties with livestreaming courtroom proceedings do not result

in a partial closure when the courtroom remains physically open to

the public. See People v. Sloan, 2024 COA 52M, ¶¶ 2, 18, 22

(holding that a defendant’s public trial right was not violated when

the livestream experienced technical difficulties); People v. Gonzalez-

Quezada, 2023 COA 124M, ¶ 60 (holding that the exclusion of a

single, intrusive, remote observer did not violate the defendant’s

public trial right).

¶ 48 Because the courtroom remained open and any member of the

public was free to attend the trial in person, the courtroom was not

closed, notwithstanding the technical difficulties.

18 III. Disposition

¶ 49 The judgment is affirmed.

JUSTICE MARTINEZ and JUDGE TAUBMAN concur.