Peo v. MacDonald

• Court: Colorado Court of Appeals
• Decided: April 10, 2025
• Docket: 23CA0572
• Status: Unpublished

Opinion

23CA0572 Peo v MacDonald 04-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0572 Jefferson County District Court No. 22CR1137 Honorable Phillip J. McNulty, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sean Patrick MacDonald,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE TOW Dunn and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 10, 2025

Philip J. Weiser, Attorney General, Yaried A. Hailu, Assistant Attorney General, Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Sean Patrick MacDonald, appeals the judgment of

conviction entered upon jury verdicts finding him guilty of felony

menacing with a deadly weapon and misdemeanor prohibited use of

a weapon. He contends that the district court reversibly erred by

allowing the prosecution to admit inadmissible evidence. We

disagree and therefore affirm.

I. Background

¶2 The State charged MacDonald with second degree assault,

felony menacing, third degree assault, prohibited use of a weapon,

and obstructing a peace officer. It was alleged that, on the night in

question, MacDonald assaulted his girlfriend (victim) and pointed a

gun at her, and that MacDonald did not comply with officers’

commands when they attempted to take him into custody at his

home. Before trial, the prosecution stated that it was not going to

introduce any CRE 404(b) other act evidence.

¶3 At trial, the victim testified regarding MacDonald’s alleged

assault and use of a weapon during the altercation. And, as

relevant to this appeal, the prosecution presented officers’

testimonies and body camera footage to establish the following

events surrounding MacDonald’s arrest.

1 ¶4 Several hours after the victim reported the altercation to

police, approximately ten officers surrounded MacDonald’s home

and used a bullhorn to order him to exit the residence. The police

had not spoken to MacDonald before this point because his

cellphone was broken and he did not have a landline. During this

time, the officers noted that MacDonald’s vehicle, which was parked

in front of the house, had been remotely turned on and then turned

off.

¶5 MacDonald eventually exited the house with his hands up, but

he was wearing body armor that had guns and knives strapped to

it. MacDonald did not comply with officers’ commands to keep his

hands up or to lay down on the ground. Due to safety concerns,

the officers fired less lethal rounds at MacDonald. He finally

dropped to the ground and was taken into custody.

¶6 Agent Cook, one of the responding police officers, testified that

this elevated tactical response was necessary because the victim

reported that MacDonald had used a weapon during the altercation

that occurred earlier in the evening (reported weapon use). During

an ensuing bench conference, defense counsel expressed concern

that the agent would say that the elevated tactical response was

2 based on, among other things, prior incidents that had occurred

between officers and MacDonald at his home (prior incidents). She

argued that this would constitute inadmissible CRE 404(b)

evidence. The prosecutor confirmed that she instructed the agent

not to discuss the prior incidents and that the agent would testify

only as to the reported weapon use. In front of the jury, Agent Cook

explained the nature of the tactical response without referencing

the prior incidents.

¶7 During Agent Cook’s cross-examination, defense counsel

confirmed that the police “responded in the way that [they] did

based on the [victim’s] allegation that there were weapons” and that

the police had not spoken to, or conducted any investigation

directly with, MacDonald. Counsel then had the following exchange

with Agent Cook:

Q Okay. So just to be clear, nobody walked up to Mr. MacDonald’s house and knocked on his door and asked him what happened, right?

A No, ma’am.

Q Okay. So the plan right away was to surround the house in what you described as a tactical manner, correct?

3 A Correct. This is what we would consider a surrounding callout.

¶8 During redirect examination, the prosecutor asked Agent

Cook, “why not just come up to [MacDonald’s] door, knock on it,

and ask him what happened?” Before the witness could answer,

the district court asked the parties to approach for a bench

conference, at which the prosecutors reconfirmed that the agent

was instructed not to talk about the prior incidents and that he

would testify that approaching the home would have been

dangerous because of the reported weapon use.

¶9 But defense counsel nevertheless objected, arguing that the

prosecutor was asking “a disingenuous question . . . [b]ecause why

[the officers] didn’t approach him was because of th[e] previous

contacts” and that this answer would constitute inadmissible CRE

404(b) evidence. The prosecutor countered that the defense had

implied throughout the trial that the officers did not do enough to

contact MacDonald before employing the elevated tactical response

and that the prosecution should be permitted to elicit why the

officers took, or declined to take, certain steps to arrest MacDonald.

The prosecutor further asserted that defense counsel’s cross-

4 examination regarding the officers’ decision not to walk up to

MacDonald’s residence and speak with him opened the door to the

admission of evidence of the prior incidents.

¶ 10 The district court agreed that defense counsel had opened the

door to the admission of the prior incidents evidence because

[b]ased on the entire cross-examination, this jury is left with the impression that every case the Lakewood Police Department goes to a call on, where a weapon is involved, they call out this tactical unit, surround the neighborhood, use a bullhorn, force somebody to come out, drop to their knees under threat of being shot. And this jury has no idea what’s really going on. And the defense exploited that through cross-examination.

The court denied defense counsel’s request for the court to evaluate

the admissibility of the prior incidents evidence and asked the

parties to comment on what evidence should be admitted. The

court decided that, “to give a fair impression” of the situation, the

prosecutor would be allowed to ask a leading question intended to

elicit a single, general statement that the police did not knock on

MacDonald’s door because they “had experience with prior calls to

this residence.”

5 ¶ 11 In front of the jury, the prosecutor asked Agent Cook if the

officers “[d]id . . . not go up and just knock on the door and ask Mr.

MacDonald what had happened because Lakewood Police

Department had experience with prior calls to this residence?”

Agent Cook responded, “Yes.”

¶ 12 The jury found MacDonald guilty of felony menacing and

prohibited use of a weapon and acquitted him of the remaining

charges. The district court sentenced him to a controlling term of

two years in the custody of the Department of Corrections.

II. Legal Authority and Standard of Review

¶ 13 CRE 404(b)(1) provides that “[e]vidence of any other crime,

wrong, or act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

conformity with the character.” Such evidence is “admissible for

another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack

of accident.” CRE 404(b)(2).

¶ 14 In order to present CRE 404(b) evidence, the prosecution must

comply with certain notice requirements. CRE 404(b)(3). Also,

when determining whether evidence is admissible under CRE

6 404(b), a court must apply the four-part test set forth in People v.

Spoto, 795 P.2d 1314 (Colo. 1990). See People v. Owens, 2024 CO

10, ¶ 110.

¶ 15 The doctrine of “opening the door” is not codified in the rules

of evidence but is instead a court-promulgated curative measure.

People v. Melillo, 25 P.3d 769, 775 (Colo. 2001). The doctrine allows

for the admission of otherwise inadmissible evidence when such

evidence is necessary to prevent one party from gaining and

maintaining an unfair advantage through the selective presentation

of evidence that, without being elaborated or placed in context,

creates an incorrect or misleading impression. Golob v. People, 180

P.3d 1006, 1012 (Colo. 2008); Melillo, 25 P.3d at 775; People v.

Murphy, 919 P.2d 191, 195 (Colo. 1996).

¶ 16 But the opening the door doctrine is not unlimited. People v.

Cohen, 2019 COA 38, ¶ 23. The opposing party may introduce

otherwise inadmissible evidence only to the extent necessary to

rebut any adverse inferences which might have resulted or to

correct an incorrect or misleading impression. Id. at ¶ 26.

¶ 17 We review for an abuse of discretion a trial court’s evidentiary

rulings, see Campbell v. People, 2019 CO 66, ¶ 21, and a court’s

7 determination of whether a party opened the door to otherwise

inadmissible evidence, see People v. Johnson, 2021 CO 35, ¶ 16. A

trial court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or when it misapplies the law.

Id.

¶ 18 Where, as here, a defendant objects to the admission of

evidence, we review any error in the admission of such evidence for

nonconstitutional harmless error. Pernell v. People, 2018 CO 13,

¶ 22. “Under th[is] . . . standard, an erroneous evidentiary ruling

does not require reversal unless the ruling affects the accused’s

substantial rights,” Nicholls v. People, 2017 CO 71, ¶ 17, or there is

“a reasonable probability that the court’s error contributed to [the

defendant’s] conviction.” People v. Short, 2018 COA 47, ¶ 54.

“Thus, we will reverse only if the error substantially influenced the

verdict or impaired the fairness of the trial.” Campbell, ¶ 22. But

“[i]f a reviewing court can say with fair assurance that, in light of

the entire record of the trial, the error did not substantially

influence the verdict or impair the fairness of the trial, the error

may properly be deemed harmless.” People v. Gaffney, 769 P.2d

1081, 1088 (Colo. 1989).

8 III. Analysis

¶ 19 MacDonald first asserts that the district court erred by

admitting the prior incidents evidence without evaluating whether

the evidence was admissible under the rules of evidence and the

Spoto test. We disagree.

¶ 20 The district court did not admit the prior incidents evidence

pursuant to the rules of evidence. The court instead found that the

prior incidents evidence was admissible pursuant to the opening

the door doctrine. As noted above, this doctrine is a judicially

created curative measure that falls outside the rules of evidence

and that provides for the admission of evidence that is otherwise

inadmissible. If evidence sought to be introduced pursuant to the

doctrine was required to be admissible under the rules of evidence,

as MacDonald suggests, the doctrine would be rendered

meaningless.

¶ 21 Thus, because the district court found that the prior incidents

evidence was admissible pursuant to the opening the door doctrine,

the court did not need to address whether it was admissible under

the rules of evidence. See Murphy, 919 P.2d at 195 (“When a party

opens the door to inadmissible evidence, [its] opponent may then

9 inquire into the previously barred matter.”); see also People v.

Rollins, 892 P.2d 866, 873 (Colo. 1995) (“The trial court was not

required to issue a limiting instruction or comply with the

procedural requirements of . . . CRE 404(b) . . . because defense

counsel first introduced, and opened the door to admitting, the

[inadmissible evidence] as part of the theory of defense.”).

¶ 22 MacDonald next contends that the district court reversibly

erred by finding that defense counsel had opened the door to allow

for the admission of Agent Cook’s otherwise inadmissible testimony

that the officers did not “go up and just knock on the door and ask

Mr. MacDonald what had happened because Lakewood Police

Department had experience with prior calls to this residence.”

Again, we disagree.

¶ 23 The record reflects that the prosecution was content with

presenting evidence demonstrating that the elevated tactical

response was based on the reported weapon use. Indeed, at the

bench conference during the redirect examination of Agent Cook,

the prosecutor confirmed that, in order to elaborate on defense

counsel’s question about the officers not walking up to the door and

talking to MacDonald, she intended to elicit testimony from Agent

10 Cook that the decision not to do so was based on the reported

weapon use. It was defense counsel who argued that the

prosecutor’s question and intended response were “disingenuous”

because the prior incidents were the actual basis for the officers’

decision to not walk up to MacDonald’s door.

¶ 24 We conclude that the district court did not abuse its discretion

by finding that defense counsel’s cross-examination opened the

door for the prosecution to present evidence to elaborate on the

incorrect or misleading impression regarding the reasonableness of

the officers’ decision not to approach MacDonald before employing

the elevated tactical response. See People v. Palacios, 2018 COA

6M, ¶ 18 (“In assessing whether a trial court’s decision is arbitrary,

unreasonable, or unfair, we look to whether the trial court’s

decision fell within a range of reasonable options. Thus, a trial

court abuses its discretion only when its decision exceeds the

bounds of the rationally available choices.”) (citation omitted). And,

as is required by the opening the door doctrine, the court properly

limited the prior incidents evidence to a single, nonspecific

reference to the officers’ “experience with prior calls to this

residence.” See Cohen, ¶ 23.

11 ¶ 25 Nevertheless, we also conclude that, even if error, the

admission of the prior incidents evidence was harmless.

¶ 26 First, the admitted prior incidents evidence was limited to an

affirmative response to a single, leading, nonspecific question, and

the evidence not was not thereafter referenced during the trial or

closing argument. See People v. Martinez, 2020 COA 141, ¶ 43

(holding the erroneous admission of evidence was harmless because

it “constituted a minor portion of [the defendant’s] trial” and “the

prosecutor did not refer to or repeat this testimony at any other

point of the trial, including during her opening statement and

closing argument.”). Indeed, even after the admission of the prior

incidents evidence, the prosecutor sought to elicit testimony from a

detective who identified the reported weapon use as the basis for

the elevated tactical response. At an ensuing bench conference to

discuss the substance of the detective’s testimony on this issue, the

prosecutor confirmed that she was not eliciting any more testimony

as to “why [the officers] responded that way in terms of past

context” because “I think we already got that out and that suffices.”

¶ 27 Moreover, the jury’s acquittal of MacDonald of the most

serious assault charges and of the charge being addressed when the

12 prior incident evidence was admitted (obstructing a peace officer)

demonstrates that, notwithstanding the prior incident evidence, the

jury was able to properly weigh and evaluate the admissible

evidence and the charges. See Martin v. People, 738 P.2d 789, 795-

96 (Colo. 1987) (A split verdict “is an indication that the jurors

exercised some discretion in their deliberations and did not blindly

convict the defendant based upon inferences drawn from” improper

evidence.).

¶ 28 Lastly, we are convinced that the evidence presented to prove

the offenses of which MacDonald was convicted was strong. See

Short, ¶ 59 (error in the admission of evidence was harmless where

the case against the defendant was strong). Specifically, the

evidence presented at trial showed that, on the night in question,

MacDonald was intoxicated, he was in possession of a gun, and he

pointed the gun at the victim. See § 18-3-206, C.R.S. 2024 (A

person commits felony menacing “if, by any threat or physical

action, he or she knowingly places or attempts to place another

person in fear of imminent serious bodily injury . . . by the use of a

firearm.”); § 18-12-106(1)(d), C.R.S. 2024 (As relevant here, a

person commits prohibited use of a weapon if “[t]he person has in

13 his or her possession a firearm while the person is under the

influence of intoxicating liquor or of a controlled substance.”).

IV. Disposition

¶ 29 The judgment of conviction is affirmed.

JUDGE DUNN and JUDGE MEIRINK concur.