22CA1728 Peo v Woodruff 10-24-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1728 Douglas County District Court No. 20CR422 Honorable Patricia D. Herron, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jennifer Lea Woodruff,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE FREYRE Grove and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee.
Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant. ¶1 Defendant, Jennifer Lea Woodruff, appeals her judgment of
conviction following jury verdicts finding her guilty of reckless
vehicular homicide, third-degree assault, reckless endangerment,
and reckless driving. We reverse and remand for a new trial.
I. Background
¶2 According to the trial evidence, on February 19, 2020,
Woodruff drove herself and the deceased, coworker Christopher
Roberts, from Colorado Springs to Westminster for a work
conference. Both were teachers at Zebulon Pike Youth Services
Center and were required to attend the conference the next day.
The two were co-teachers, and Roberts had just returned to work
that day from an emergency gallbladder surgery and asked
Woodruff for a ride to the conference.
¶3 Woodruff drove a white Jeep north on I-25 and recalled drizzle
changing to snow as she approached Monument Hill. Her last
memory was of slowing down due to the weather, and her next
memory was awakening in a hospital.
¶4 Several witnesses reported seeing a white Jeep approaching
from behind them at a high rate of speed. This area of the highway
was under construction and reduced to two lanes of traffic.
1 Witnesses described the Jeep weaving between cars and nearly
striking them, while others moved to avoid being hit. The Jeep
maintained a constant speed of approximately 100 miles per hour
and sometimes straddled the center line between the two lanes.
¶5 The Jeep eventually struck the right rear corner of Joseph
Medina’s truck, causing the truck to spin out and pinball between
the barriers on either side of the highway. Medina heard tires
screeching and saw the Jeep approaching quickly from behind
before hitting him. He suffered minor injuries from the accident.
The Jeep hit a crash cushion, flipped, and flew over several cars. It
hit the guardrail, which ripped off the roof, and landed upside down
on the road.
¶6 After the crash, witnesses cut Roberts’s seatbelt and removed
him from the Jeep. Paramedics declared him dead at the scene.
Woodruff was transported to the hospital where she was treated for
a severe head injury. Trooper Botts interviewed Woodruff at the
hospital, but she had no memory of the crash. Blood test results
confirmed there were no drugs or alcohol in Woodruff’s system. She
suffered serious injuries, including a traumatic brain injury. She
2 remained in the hospital for six days and then was transferred to a
rehabilitation facility for five days.
¶7 The prosecution charged Woodruff on April 22, 2020, and she
was released on bond the next day. Two months later, Woodruff
sought an explanation for her driving behavior and amnesia of the
accident. Her sister Cindy1, a registered nurse, referred her to a
vascular neurologist, Dr. Mihaela Alexander. Dr. Alexander
obtained a medical history from Woodruff and Cindy and conducted
preliminary tests to rule out epilepsy and any cardiac condition.
Woodruff’s medical history revealed that she had experienced
syncope (fainting) events throughout her life. These events were
triggered by medical procedures and gore. But rather than going
limp when she lost consciousness, Woodruff’s body stiffened and
convulsed, a condition called vascular vagal convulsive syncope.
The body movements caused by convulsive syncope are often
mistaken for a seizure.
1 We refer to Cindy using her first name because she shares the
same last name as Woodruff, and we mean no disrespect in doing so.
3 ¶8 Woodruff said Roberts spoke of his gallbladder surgery before
the accident. Based on the negative test results, the absence of
medications in Woodruff’s system and Woodruff’s complete amnesia
of the crash, Dr. Alexander opined that Woodruff likely experienced
a vasovagal syncope event triggered by Roberts’s mention of his
gallbladder surgery. Dr. Alexander recommended further epilepsy
testing and referred Woodruff to a neurologist with an epilepsy
specialty, Dr. Rick Clemmons.
¶9 Dr. Clemmons ordered a 48-hour epilepsy test that was also
negative. Like Dr. Alexander, he opined, based on her medical and
family history (Woodruff’s father suffered from severe vasovagal
syncope), as well as the test results, that Woodruff experienced a
convulsive syncope event. As a precautionary measure, he
prescribed a low dose of an anti-seizure medication and advised
her, according to the standard protocol, not to drive for three
months.
¶ 10 At trial, the prosecution introduced the testimony of witnesses
who described the highway and weather conditions, the excessive
speed at which the Jeep was travelling, and its weaving around cars
up to the crash. One witness described Woodruff sitting upright
4 with her hands at ten and two and the passenger with his back
turned as if he was arguing with the driver.
¶ 11 Trooper Trent Waters testified as an expert in crash
investigation and reconstruction. After ruling out any mechanical
defects with the Jeep, he analyzed data from the Jeep’s “black box”,
which contained speed, steering movements, and braking data for
the five seconds before the crash. He then fed the information into
a software program that produced an animation of the crash. The
data revealed steering wheel movement consistent with weaving, a
depressed accelerator, no application of the brakes, and a speed of
over one hundred miles per hour at the time of the crash. He
opined that the crash was caused by Woodruff “intentionally driving
her vehicle in excess of the posted speed limit of 45, traveling at
103-106 miles per hour, while steering, to avoid traffic and
maneuver in and out of traffic.”
¶ 12 The prosecution charged Woodruff with reckless vehicular
homicide, third degree assault, reckless endangerment, and
reckless driving. The prosecutors argued that Woodruff enjoyed
driving fast, weaved in and out of cars while speeding, and
recklessly sped through a construction zone and caused the
5 accident. They questioned her amnesia of the event and argued
that she saw the neurologists and created the vasovagal syncope
defense only after she had been charged with the crimes. Woodruff
argued that a convulsive syncope event caused her to lose
consciousness, explained why the brakes were never applied, and
explained why she had no memory of the crash. The jury convicted
her as charged.
¶ 13 The trial court found extraordinary mitigating circumstances
and sentenced Woodruff to one year in the custody of the
Department of Corrections for reckless vehicular homicide, and to a
concurrent one year in jail for third degree assault. The court
merged the remaining counts into the vehicular homicide
conviction.
¶ 14 Woodruff challenges her convictions on four grounds,
asserting the trial court erroneously: (1) precluded the admission of
a prior inconsistent statement; (2) permitted repeated prosecutorial
misconduct; (3) permitted Trooper Waters to opine on her intent at
the time of the crash thereby usurping the jury’s role; and (4)
instructed the jury using a civil jury instruction taken from 1970s
civil cases. She also asserts cumulative error.
6 ¶ 15 Because we agree that the court erred in refusing to admit
Woodruff’s prior inconsistent statement, a key component of her
defense, we reverse her convictions and remand for a new trial.
Additionally, we address those portions of her prosecutorial
misconduct argument directly related to that statement that
contributed to the error’s reversal. Finally, because they are
unlikely to arise in the same context on remand, we do not address
her expert and instructional allegations.
II. Prior Statement
¶ 16 Woodruff contends that the trial court erroneously precluded
(as self-serving hearsay) the admission of her statement to her
sisters, shortly after the accident, that Roberts had mentioned his
gallbladder surgery before the crash. She argues that this
evidentiary error, when combined with pervasive prosecutorial
misconduct that denigrated the defense and asserted that it was
largely a fabrication, denied her a constitutionally fair trial. We
agree.
A. Additional Facts
¶ 17 While Woodruff was still hospitalized, Cindy pushed her to
recall what had caused the crash. While Woodruff could not
7 remember the crash itself, she told Cindy and Lisa Tsiao (another
sister) that Roberts had said something about his gallbladder
surgery before the crash.
¶ 18 During direct examination, defense counsel asked Tsiao
whether she had any conversations with Woodruff about what
happened. As Tsiao responded, the prosecutor objected as
self-serving hearsay. The court allowed the question and Tsiao
said, “[s]he said that she didn’t remember the actual accident. I
asked her – tried to draw out from her what was going on, and she
said that they were talking about Chris’s gallbladder surgery, I
guess; that he had a drain.”
¶ 19 The prosecutor again objected as self-serving hearsay, and the
court sustained the objection.
¶ 20 Counsel next attempted to elicit the statement from Cindy in
the following colloquy:
DEFENSE COUNSEL: What was the next question you asked her?
CINDY: I asked her – it’s what she said. She continued on with that. And I said, “Do you remember anything else?” And she answered. I don’t know if I can say what she said.
8 DEFENSE COUNSEL: Did she tell anything about a conversation she had with Mr. Roberts?
¶ 21 The prosecutor objected and argued that Cindy’s answer called
for hearsay. The court sustained the objection and instructed
Cindy that she could answer the question without revealing the
conversation. Cindy answered, “Yes, she did.” Counsel asked the
court if he could elicit the statement. At a bench conference,
counsel argued that the prosecution had asked another witness,
Trooper Botts, whether Woodruff had volunteered information about
the crash. He wanted to establish that Woodruff would have
responded with this information. The prosecution objected as
self-serving hearsay, and the court sustained the objection.
¶ 22 Woodruff testified that she remembered nothing about the
accident. On cross-examination by the prosecutor, she said she did
not remember what Roberts said before the accident. Following the
doctors’ testimony, defense counsel asked to recall Cindy to elicit
the statement as a prior inconsistent statement, and the court
refused the request.
9 B. Standard of Review and Applicable Law
¶ 23 We review a trial court’s evidentiary rulings for an abuse of
discretion. Russell v. People, 2017 CO 3, ¶ 5. A trial court abuses
its discretion when it misapplies the law or when its ruling is
manifestly arbitrary, unreasonable, or unfair. People v. Baker, 2021
CO 29, ¶ 29. A trial court’s exclusion of a witness’s prior
inconsistent statement is reviewed for nonconstitutional harmless
error. People v. Salas, 2017 COA 63, ¶ 32. An error of
nonconstitutional dimension is prejudicial when there is a
reasonable probability that it contributed to a defendant’s
conviction by substantially influencing the verdict or impairing the
fairness of the trial. People v. Casias, 2012 COA 117, ¶61.
¶ 24 Hearsay is “a statement other than the one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” CRE 801(c). Hearsay
evidence is inadmissible unless it fits one of the exceptions
identified in the Colorado Rules of Evidence. See CRE 803, 804. A
statement is not hearsay if the declarant testifies at the trial and is
subject to cross-examination concerning the statement and the
statement is inconsistent with their testimony. CRE 801(d)(1)(A). If
10 a witness does not remember a prior statement, the statement is
admissible as a prior inconsistent statement. People v. Thomas,
2014 COA 64, ¶ 20; People v. Baca, 633 P.2d 528, 529 (Colo. App.
1981).
¶ 25 Section 16-10-201(1), C.R.S. 2024 permits the use of a prior
inconsistent statement to prove the truth of the matter asserted so
long as the statutory foundational requirements for substantive
admissibility have been satisfied. Montoya v. People, 740 P.2d 992,
998 (Colo. 1987). A prior inconsistent statement is admissible to
impeach a witness’s testimony and to establish a fact if the witness
(1) was given an opportunity, when testifying, to explain or deny the
statement; or (2) is still available to give further testimony in the
trial. § 16-10-201(1)(a); see also Thomas, ¶ 20 (if a witness does not
remember a prior statement, the statement is admissible as a prior
inconsistent statement).
¶ 26 Colorado law contains no categorical bar to the admission of a
defendant’s self-serving hearsay statements. See People v.
Vanderpauye, 2023 CO 42, ¶ 4. Accordingly, if the proffered
statement meets an exception to the hearsay rule, it may be
admitted, subject to CRE 403. See id. at ¶ 28.
11 C. Analysis
1. The Error
¶ 27 To begin, no one disputes that Woodruff’s statement to her
sisters was an out-of-court statement offered for its truth.
Nonetheless, we conclude that the trial court abused its discretion
by excluding Woodruff’s statement as self-serving hearsay and that
it should have been admitted as a prior inconsistent statement.
The record shows that Woodruff recalled no details of the crash or
the specifics of her conversation with Roberts immediately before
the crash. While counsel initially sought the statement’s admission
to show what she would have told Trooper Bott if asked, following
Woodruff’s inability to recall making the statement, he then sought
to admit it as a prior inconsistent statement by recalling Cindy to
testify. Therefore, we reject the People’s argument that Woodruff’s
purpose in admitting the statement was “not for impeachment.”
¶ 28 Woodruff’s testimony that she could not recall her prior
statements amounted to a denial that she made them and thus,
constituted an inconsistent statement. Thomas, ¶ 20. Therefore,
the trial court erred when it precluded counsel from admitting the
12 statements through Cindy, who was available to give further
testimony. § 16-10-201(1)(a).
2. The Remedy
¶ 29 Having concluded an error occurred, we must determine
whether it requires reversal. The People assert the error was
harmless and argue that the prosecution presented overwhelming
proof of Woodruff’s guilt through the accident reconstruction
expert’s testimony about the black box data, which showed
accelerator pressure from full throttle to 66% throttle and steering
variations from two degrees left to thirty-five degrees right, thereby
proving the driver was in control of the Jeep. They further argue
that this data was consistent with the witnesses who observed
Woodruff’s driving and with the expert’s opinion that Woodruff’s
driving was intentional.
¶ 30 Woodruff contends the statement, and particularly its timing,
was crucial to her defense and that the court’s error deprived her of
a full and fair defense. We need not decide whether the statement
alone requires reversal because even assuming the error was
harmless, we conclude, consistent with Woodruff’s final argument,
that the cumulative error in precluding this statement and the
13 numerous unpreserved instances of prosecutorial misconduct
specifically related to it substantially influenced the verdict and
affected the outcome of the trial. Hagos v. People, 2012 CO 63,
¶ 12.
¶ 31 Cumulative error is a question of law that we review de novo.
Howard-Walker v. People, 2019 CO 69, ¶ 22. “We will reverse for
cumulative error where, although numerous individual allegations
of error may be deemed harmless and not require reversal, in the
aggregate those errors show prejudice to the defendant’s
substantial rights and, thus, the absence of a fair trial.” People v.
Gallegos, 260 P.3d 15, 28-29 (Colo. App. 2010); Howard-Walker, ¶
23.
¶ 32 Cumulative error occurs when “there is a ‘unique symmetry’ of
otherwise harmless errors, such that they amplify each other in
relation to a key contested issue in the case.” Ybarra v. McDaniel,
656 F.3d 984, 1001 (9th Cir. 2011); see also Parle v. Runnels, 505
F.3d 922, 930 (9th Cir. 2007) (reversing for cumulative error and
finding “[a] unique and critical thread runs through the trial errors
in this case: all of the improperly excluded evidence . . . supported
[the defendant’s] [state of mind] defense . . . at the same time, all of
14 the erroneously admitted evidence . . . undermined [his] defense
and credibility and bolstered the State’s case”).
¶ 33 We begin with Woodruff’s defense. She never disputed the
black box data and instead, argued that the acceleration and
steering fluctuations were equally consistent with her having
experienced a convulsive vasovagal syncope event and with Roberts
grabbing the steering wheel when she lost consciousness. She also
argued that the data showing the brakes were never applied
supported a syncope event. She argued there was no reason for her
to have driven recklessly given the weather conditions, and that the
only reasonable explanation for her driving behavior and inability to
remember what happened was the convulsive vasovagal syncope
event.
¶ 34 We find reversible error for two reasons.
¶ 35 First, the prosecution relied heavily on the timing of
Woodruff’s claim that she suffered a medical event as evidence of
her guilt in closing argument. In the first closing, the prosecutor
argued that Woodruff had no memory of the gallbladder story at the
hospital, and that “[t]hen, with Dr. Clemmons, we get the
gallbladder story that she didn’t tell the other doctor, Dr.
15 Alexander.” He then said, “[I]n front of you, [] she had no memory
of ever, ever hearing a gallbladder story. Now that is some
select[ive] memory. That certainly conforms to the doctor’s report
but allows her not to comment on it here. And she went to these
doctors to create a defense. She testified for you to bolster that
defense.”
¶ 36 Later, the same prosecutor conceded that Dr. Clemmons said
it was likely Woodruff experienced a syncope event, and then
argued, “But what did he base that on? The gallbladder story, the
description of the gallbladder. He said that was key to his
diagnosis, that trying to remember was key, that gallbladder story
that she did not remember after the crash, that she remembered only
conveniently after making appointments with doctors, after being
charged in this case, that she conveniently did not remember in her
testimony ever saying during the trial.”
¶ 37 During rebuttal closing, a different prosecutor urged the jury
to remember what it heard from witnesses versus the lawyers. He
then said, “And, boy, is that true in this case, ladies and gentlemen
because you have heard the references to gallbladder surgery and
vasovagal syncope a lot in the last four days. Because defense
16 counsel says it often enough, all of a sudden it becomes true. And
that’s just not supported by the evidence.” He followed by saying,
“. . . things that counsel asserts that simply aren’t supported by the
evidence; that Chris was talking about his gallbladder surgery at the
time of the crash. Did a single witness, including the defendant, say
that’s what happened? No. You swore to base a decision on the
evidence. There’s none. The defendant fainted. There’s actually no
evidence that happened here.”
¶ 38 The prosecutor then argued, “. . . the defendant has a
previously undiagnosed medical condition. Still not sure whether
it’s really a fainting disorder or seizure disorder or something else,
so we’ll call it a fraser.” He later argued, “A fraser disorder, for
which there is no objective medical evidence, all of her testimony is
gone. All of it. That she’s never sought treatment for or been
diagnosed with it before, before she was charged with this crime,
never, until coincidentally, about two months after she is charged
with vehicular homicide, she goes to a doctor, frankly.” He then
argued, “Because one option you have is that is not a thing; that
she doesn’t have a tendency to have seizures, this is fabricated by
the defense, or by the defense witnesses.”
17 ¶ 39 Second, numerous instances of unpreserved prosecutorial
misconduct during opening statements and closing arguments
specifically related to the medical evidence and the defense’s theory
contributed to the prejudice, including:
• The prosecutor’s assertion that the sisters’ testimony was very
consistent and described Woodruff’s syncope as her going
“limp” when the record shows that both sisters described
Woodruff’s syncope events as convulsive and with her body
stiffening. See People v. Fierro, 651 P.2d 416, 417-18 (Colo.
App. 1982) (a prosecutor may not misrepresent the facts to the
jury).
• The prosecutor’s characterization of convulsive vasovagal
syncope as a “fraser” when the unrefuted medical testimony
ruled out a seizure disorder and established vasovagal syncope
as Woodruff’s medical diagnosis. Id.
• The prosecutor’s argument that Dr. Clemmons was the only
witness to whom Woodruff mentioned Roberts’s gallbladder
statement when the record shows that Dr. Alexander knew of
and considered this fact and when the prosecutor knew she
had said the same to her sisters at the hospital. Id. (improper
18 to misstate facts and for a prosecutor to make arguments in
closing he knows is refuted by evidence he sought to exclude).
• The prosecutor’s description of Dr. Alexander’s testing and
concluding, “That doesn’t make me feel good in the medical
diagnosis.” See People v. Walters, 148 P.3d 331, 334 (Colo.
App. 2006) (misconduct for a prosecutor to refer to facts not in
evidence or make statements reflecting his personal opinion or
personal knowledge).
• The prosecutor’s description of the people he encounters in his
work saying, “I want to give you another saying, and I can’t
actually figure out who this is ascribed to, but it’s [not]
important. ‘Don’t expect a rational reason for an irrational
act.’ You know, unfortunately, the business that I am in as a
prosecutor deals with a lot of people who do a lot of terrible
things. And a lot of times they regret it afterward. And they
almost never have a good reason to do it. People do stupid
things. People do stupid things they regret later. People do
stupid things they don’t remember later – I’ve got a few
younger people here on the jury – but that doesn’t mean that
at the time they’re doing it they didn’t know they were doing
19 it.” See id. (personal opinions improper); Domingo-Gomez v.
People, 125 P.3d 1043, 1049 (Colo. 2005) (noting that
improper assertions of personal knowledge carry much weight
against an accused when they should carry none).
• The prosecutors’ characterization of the defense theory as an
“attempt[] to dodge responsibility for his death,” and “an insult
to [Roberts]”; as “requiring incredible mental gymnastics”; as
“a story only told by defense counsel”; as a “façade”; as
requiring “flights of fancy to buy”; as “baffling”; as “ridiculous”;
the prosecutor’s description of her condition as a “special kind
of unconsciousness”; his description of defense counsel’s
demonstration of what could have occurred during the
syncope event as “distracting performance art”; and the
prosecutor’s argument that to acquit Woodruff, the jury had to
“believe her story,” followed by a series of events comprising
that story, and concluding with, “And ladies and gentlemen, if
you believe that, I’ve got some ocean front property in Arizona
to sell you. That’s silly.” See People v. Denhartog, 2019 COA
23, ¶ 52 (misconduct for prosecutor to make remarks
denigrating the defense); People v. Trujillo, 2018 COA 12, ¶ 44
20 (misconduct to call defense arguments “completely ridiculous”
and “preposterous”); People v. Coria, 937 P.2d 386, 388, 391
(Colo. 1997) (prosecutor’s references to “Theatrics 101,”
“smoke and mirrors,” and “diversionary tactics” are
misconduct when used to attack or mock defense counsel);
People v. Jones, 832 P.2d 1036, 1038 (Colo. App. 1991)
(misconduct to call defense theory “insulting”); United States v.
Reed, 724 F.2d 677, 681 (8th Cir. 1984) (misconduct for
prosecutor to argue that to acquit the defendant the jury had
to find the defendant was telling the truth and all the
government witnesses were lying because it was a distortion of
the government’s burden of proof); People v. Scheidt, 526 P.2d
300, 302 (Colo. 1974) (misconduct to argue that mental
condition defense was a “miscarriage of justice”).
¶ 40 We conclude that the cumulative effect of the court’s
evidentiary error and the numerous instances of prosecutorial
misconduct related to it and to Woodruff’s theory of defense
substantially influenced the verdict and affected the outcome of the
trial. Accordingly, we reverse Woodruff’s convictions and remand
the case for a new trial.
21 ¶ 41 While we need not address the remaining allegations of
prosecutorial misconduct, we caution counsel against using
analogies in arguing the evidence as they may alter or lower the
burden of proof. People v. Cuellar, 2023 COA 20, ¶ 68. Similarly,
we caution the court against using jury instructions crafted from
case law. See People v. Espinosa, 2020 COA 63, ¶ 15, n.1 (“[W]e
agree with Espinosa that crafting jury instruction language by
quoting from case law is ‘generally an unwise practice,’” and“is
particularly risky when the language from which the jury
instruction is crafted does not come from a case involving a jury
instruction issue.”) (citing Evans v. People, 706 P.2d 795, 800 (Colo.
1985)); People v. Chirico, 2012 COA 16, ¶¶ 10-15 (finding error in
instructing jury using a presumption instruction from a defense of
property case in a self-defense case).
III. Disposition
¶ 42 The judgment is reversed, and the case is remanded for a new
trial.
JUDGE GROVE and JUDGE LUM concur.