21CA1368 Peo v Zotto 10-31-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1368 Arapahoe County District Court No. 19CR2064 Honorable Joseph Whitfield, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Keith Allen Zotto,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE HARRIS J. Jones and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 31, 2024
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Keith Allen Zotto, appeals the judgment of
conviction entered on a jury verdict finding him guilty of first degree
murder of his wife. We affirm.
I. Background
¶2 Late on a Saturday night, Zotto and his wife were drinking
together in their garage. Throughout the night, they argued about
unpaid bills. The argument intensified around midnight, and the
victim retrieved a gun and hit Zotto with it. Zotto gained control of
the gun, and, as the victim held up her hands and pleaded with
him not to shoot, Zotto shot her in the face, killing her. Then he
hid her body in a trash can and cleaned up the garage before his
children returned home that morning.
¶3 A couple of days later, Zotto confessed to his sister. He
admitted that he pointed the gun at the victim, she “put her hand
up and said, ‘Keith, don’t,’” and then he “blinked his eyes and when
he opened [them], he saw her teeth on the ground.” He did not say
that he “was angry” or that “he hated [the victim],” but he told his
sister that he “couldn’t take it anymore.”
1 ¶4 While Zotto was at his sister’s house, the police discovered the
victim’s body in the couple’s garage. Zotto was charged with one
count of first degree murder.
¶5 At trial, defense counsel conceded that Zotto shot his wife.
But she argued that he was too intoxicated to form the requisite
mental state for first or second degree murder and that he
accidentally discharged the gun. She asked the jury to find Zotto
guilty of the lesser included offense of manslaughter. The jury
found him guilty of first degree murder instead.
¶6 On appeal, Zotto contends that the court erred by
(1) admitting evidence of prior acts of domestic violence under CRE
404(b); (2) admitting a recording of his sister’s entire twenty-minute
interview with police; and (3) instructing the jury on the exceptions
to self-defense.
II. Evidentiary Issues
¶7 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. McLaughlin, 2023 CO 38, ¶ 22. A court
abuses its discretion if its ruling is “manifestly arbitrary,
unreasonable, or unfair” or “when it misapplies the law.” Id. If we
determine that the court erred, we will reverse based on a
2 preserved, nonconstitutional error if the error “substantially
influenced the verdict or affected the fairness of the trial
proceedings.” Hagos v. People, 2012 CO 63, ¶ 12 (quoting Tevlin v.
People, 715 P.2d 338, 342 (Colo. 1986)).
A. Admission of Prior Acts of Domestic Violence
¶8 At trial, the victim’s colleague, who was a close friend, testified
that in the months leading up to the shooting, the victim had twice
come to work with visible injuries. On the first occasion, the victim
was wearing sunglasses, and when she took them off, the friend
saw “that she had a very black eye” that “was really bloodshot.”
The victim was “really upset” and “crying.” She told the friend that
she and her husband had argued and that she “need[ed] to learn to
not talk back.” On the second occasion, a few months later, the
victim came to work wearing sunglasses and a scarf. When she
took them off, the friend saw “a bruise around [the victim’s] neck,”
and “[h]er eyes were so bloodshot, it was hard [for the friend] to
even look at her.” The victim said that she and her husband had
argued, and he “strangled her on the kitchen floor.” She told the
friend that she was so scared of Zotto that “she would sleep in her
car a lot.”
3 ¶9 Over defense counsel’s objection, the court ruled that the
evidence was admissible under CRE 404(b) to show “the mental
state of the defendant” — meaning, Zotto’s motive, intent, and
knowledge — and to rebut his claims of self-defense and accident.
¶ 10 On appeal, Zotto contends that the court erred by admitting
the prior act evidence because, first, the friend’s testimony was
hearsay, and, second, the court failed to articulate a precise
evidential hypothesis explaining how the prior acts were relevant for
any purpose other than establishing propensity.
1. Hearsay
¶ 11 As an initial matter, we reject Zotto’s argument that the
friend’s testimony constituted inadmissible hearsay. Hearsay is an
out-of-court statement admitted for the truth of the matter
asserted. CRE 801(c). Hearsay is inadmissible unless it falls within
an exception to the rule prohibiting it. CRE 802.
¶ 12 In admitting the friend’s testimony, the court relied on the
residual exception, which allows a hearsay statement to be
admitted if it has “circumstantial guarantees of trustworthiness”
and it satisfies the rule’s three part test: the statement is offered as
evidence of a material fact; the statement is more probative on the
4 point for which it is offered than any other available evidence; and
admission of the statement will serve the purpose of the rules and
the interests of justice. CRE 807.
¶ 13 Zotto does not dispute that the friend’s testimony satisfies the
three-part test. Instead, he says that the victim’s statements to the
friend were insufficiently trustworthy because they “lacked detail
and corroboration.” Contrary to Zotto’s argument, the only
reasonable inference from the victim’s statements to the friend
about the first incident was that Zotto hit her and caused the black
eye. Thus, the victim’s statement was not untrustworthy because it
did not “detail that [Zotto] hit her or otherwise how she came to be
injured.” Nor is there any independent corroboration requirement.
(After all, if the witness had observed the prior acts, her testimony
would not be hearsay.) Even so, the victim’s statements were
corroborated by her injuries and by her demeanor during her
disclosure to the friend. See People v. McFee, 2016 COA 97, ¶ 22.
2. Admission of Prior Act Evidence
¶ 14 Generally, evidence of other crimes, wrongs, or acts 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
5 character.” CRE 404(b)(1). However, such evidence may be
admissible for a limited purpose — as relevant here, to prove motive
or intent or to refute a claim of accident or self-defense. See CRE
404(b)(2); Yusem v. People, 210 P.3d 458, 465 (Colo. 2009) (In
assessing admissibility of CRE 404(b) evidence, “the defendant’s
mental state and rebutting self-defense are two sides of the same
inquiry.”).
¶ 15 And when the prior acts are acts of domestic violence, the
evidence is generally considered “helpful and . . . necessary” to
establish, among other things, the “escalating levels of seriousness”
of the domestic violence. § 18-6-801.5(1), C.R.S. 2024; see also
People v. Cross, 2023 COA 24, ¶ 22 (In enacting section 18-6-801.5,
the legislature intended to “place[] its finger on the scale in favor of
admitting evidence of prior acts of domestic violence in prosecutions
involving domestic violence.”).
¶ 16 Evidence is admissible under Rule 404(b) or section 18-6-
801.5 only if it satisfies the four-part test articulated in People v.
Spoto, 795 P.2d 1314, 1318 (Colo. 1990): (1) the evidence must
relate to a material fact; (2) the evidence must be logically relevant;
(3) the logical relevance must be independent of the propensity
6 inference prohibited by Rule 404(b); and (4) the probative value of
the evidence must not be substantially outweighed by the danger of
unfair prejudice.
¶ 17 Zotto challenges only the court’s finding under the third Spoto
prong: He says the court did not explain how the prior act evidence
was logically relevant independent of a prohibited propensity
inference.
¶ 18 It is well established, though, that prior acts of domestic
violence are admissible to prove motive, intent, and lack of accident.
The fact that Zotto had previously hit the victim in the face and
strangled her provided a motive for his conduct on the night of the
shooting and made it more likely that he intended to harm her
rather than having accidentally shot her. Thus, the evidence was
logically relevant to the critical disputed issue in the case —
whether Zotto’s act was intentional — and its relevance was
independent of any propensity inference. See, e.g., Cross, ¶ 24
(evidence of the defendant’s prior acts of domestic violence against
the victim were admissible to prove motive, intent, and lack of
accident); People v. Vasquez, 2022 COA 100, ¶ 77 (evidence of the
defendant’s prior act of breaking the victim’s television during an
7 argument was admissible to prove lack of accident); People v.
McBride, 228 P.3d 216, 227 (Colo. App. 2009) (evidence of the
defendant’s prior acts of punching, beating, and choking the victim
were admissible to prove intent and to rebut of a claim of accident);
People v. Gross, 39 P.3d 1279, 1282 (Colo. App. 2001) (evidence of
prior acts of domestic violence against the victim were admissible to
prove motive and intent); see also Yusem, 210 P.3d at 465
(“Because the prior act evidence is logically relevant to demonstrate
[the defendant’s] mental state, it necessarily is relevant to rebut his
claim of self-defense.”).
¶ 19 We conclude that the court properly admitted the friend’s
testimony under CRE 404(b) and section 18-6-801.5.1 Thus, even
though the trial court’s findings or explanation could have been
more detailed, we discern no error. See, e.g., People v. Cousins, 181
P.3d 365, 370 (Colo. App. 2007).
¶ 20 Finally, we reject Zotto’s argument that the court’s limiting
instruction requires reversal. The instruction provided as follows:
1 Even assuming the evidence was not admissible to prove
“knowledge,” Zotto does not explain how its admission for this additional purpose could have prejudiced him given its admissibility for other, legitimate purposes.
8 The court admitted certain evidence for a limited purpose. You are again instructed that you cannot consider that evidence except for the limited purpose of establishing Mr. Zotto’s motive, intent, knowledge, and or to rebut the defense of self-defense and/or accident. You shall not consider it for any other purpose. . . . You may not use this evidence to show that Mr. Zotto has a bad character and that in the present case he acted in accordance with that bad character.
¶ 21 Zotto says the instruction was flawed because it merely
provided a “laundry-list of permitted uses,” which did not
“effectively limit [the jury’s] consideration of the evidence to any
properly confined purpose.” But because Zotto’s counsel tendered
an instruction that included an identical “laundry-list,”2 any
purported error was invited, and we therefore decline to consider
2 The tendered instruction provided, in relevant part, as follows:
You may consider evidence regarding these prior allegations only as it may relate to motive, intent, knowledge or to refute claims of self-defense and accident. . . . Each juror must decide for him or herself whether this evidence relates to the permissible purposes listed above, and if so, what weight to give such evidence.
9 the merits of this argument.3 See People v. Rediger, 2018 CO 32,
¶ 34.
B. Admission of the Sister’s Police Interview
¶ 22 Shortly after Zotto told his sister that he had shot the victim,
the sister called the police. Later that day, a detective conducted a
brief recorded interview of the sister.
¶ 23 At trial, the prosecution called the sister to testify about
Zotto’s confession. On direct examination, she said Zotto told her
that he planned to dump the victim’s body at a job site, but the
victim was too heavy. On cross-examination, the sister
acknowledged that she had not told the detective about Zotto’s
plan. The sister also testified on cross-examination that she could
not remember certain statements she had made to the detective,
including that when Zotto first began discussing the incident, he
said he did not remember anything; that Zotto told her the
3 To the extent Zotto argues that the court’s instruction erroneously
permitted the jury to consider whether the prior act evidence “established” motive, intent, or lack of accident, the argument is too undeveloped for us to address. See People v. Cuellar, 2023 COA 20, ¶ 44. We note, however, that under CRE 404(b)(2), prior act evidence is admissible to “prov[e]” motive, intent, or lack of accident. For that reason, we do not see why use of the word “establish” amounts to error.
10 argument with the victim intensified around midnight when the
couple began going through unpaid bills; and that Zotto said when
he took the gun from the victim, it was already “cocked,” and that
type of gun would “stay in the shooting position sometimes after it
was cocked.” Defense counsel impeached the sister by playing
short clips of the interview relating to those three statements.
¶ 24 Following cross-examination, the prosecution moved to admit
the sister’s recorded interview to rehabilitate the sister after the
defense’s “credibility attack.” The court agreed that the cross-
examination amounted to a “wholesale attack on [the sister’s]
credibility” and admitted the recording of the entire interview.
¶ 25 On appeal, Zotto argues that the court erred by admitting the
recorded interview.
1. Applicable Legal Principles
¶ 26 In Colorado, a witness’s prior consistent statements are
admissible under two theories. Under CRE 801(d)(1)(B), a prior
consistent statement may be admitted as substantive evidence
when it is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive. See
People v. Eppens, 979 P.2d 14, 20 (Colo. 1999). Prior consistent
11 statements are also admissible “outside CRE 801(d)(1)(B)” to
rehabilitate a witness “when [the] witness’[s] credibility has been
attacked.” Id. at 21.
¶ 27 How much of a prior consistent statement is admissible for the
latter purpose depends on its relevance and probative use, which
turns on the scope of the impeachment and the attack on the
witness’s credibility. People v. Clark, 2015 COA 44, ¶ 126. “If the
impeachment goes only to specific facts, then only prior consistent
statements regarding those specific facts are relevant and
admissible.” Id. (citation omitted). But if the impeachment is
“general and not limited to specific facts, then the jury should have
access to all the relevant facts, including consistent and
inconsistent statements.” People v. Elie, 148 P.3d 359, 362-63
(Colo. App. 2006) (witness’s entire videotaped statement was
admissible as a prior consistent statement where defense counsel
cross-examined the witness “on almost every aspect of his account
of the crime”).
2. Discussion
¶ 28 Zotto contends that the recorded interview was not admissible
in its entirety because counsel’s impeachment of the sister was
12 limited and targeted, not a “wholesale attack” on her credibility.
Even if we assume that the court erred, we conclude that any error
is harmless.
¶ 29 Zotto insists that the recorded interview prejudiced him
because it “reveal[ed] [the sister’s] emotional reaction” and put
“improper and inflammatory character and opinion testimony” in
front of the jury. But in his briefing, he mentions only five
comments by the sister: (1) “[P]oor kids”; (2) “I don’t understand
why he waited [to tell me about the shooting]”; (3) “I had talked to a
lawyer and told him to shut up”; (4) “I was devastated. . . . I
couldn’t even believe he was my family at that time”; and (5) “I
didn’t understand how he could be at work all day, kids at home,
dogs at home, she’s in the trash can in 90-degree weather since
Saturday night and it’s Monday -- Tuesday.” And he does not
explain how their admission prejudiced him.
¶ 30 True, the sister cried during some of the interview, but crying
is not per se prejudicial, and, in any event, the jurors also heard a
seven-minute 911 call, during which the sister sobbed
uncontrollably, and saw the sister crying during cross-examination.
13 ¶ 31 And we cannot say that the sister’s brief reference to the
couple’s children or to her own feelings of shock and sadness
amounted to “inflammatory” comments. Defense counsel herself
elicited testimony from the sister that the victim “was the most
amazing woman [she] kn[ew],” and “this whole thing [wa]s upsetting
to [the sister],” in part because she “lost the kids.” The sister’s
statement that a lawyer had advised Zotto to “shut up” did not
reflect poorly on Zotto, especially as he had already come clean to
the sister. And we see no obvious prejudice from the sister’s
comment about Zotto’s short delay in confessing, particularly in
light of the fact that she answered several questions on redirect
examination about the delay, all without objection. The only
facially prejudicial statement is the sister’s reference to Zotto’s
ability to keep up appearances even as the victim lay dead in a
trash can in the garage. But given all the other statements about
the victim being found dead in a trash can, and the sister’s specific
testimony that Zotto placed the victim there, we are confident this
single comment from the recorded interview did not substantially
influence the verdict. See People v. Short, 2018 COA 47, ¶ 57 (error
in admitting evidence was harmless when evidence was cumulative
14 of properly admitted testimony); People v. Casias, 2012 COA 117,
¶ 64 (same).
III. Self-Defense Jury Instruction
¶ 32 Lastly, Zotto argues that the court erred by instructing the
jury on two exceptions to self-defense — provocation and initial
aggressor — because there was insufficient evidence to support
each of the exceptions.
¶ 33 The trial court must “instruct the jury correctly on all matters
of law for which there is sufficient evidence to support giving
instructions.” People v. Knapp, 2020 COA 107, ¶ 20. However, the
jury should not be instructed “on abstract principles of law
unrelated to the issues in controversy.” Id. (quoting Castillo v.
People, 2018 CO 62, ¶ 34). The trial court must determine whether
there is sufficient evidence to warrant an instruction on an
affirmative defense and any exceptions to that defense. Castillo,
¶ 34 The court agreed to instruct the jury on self-defense involving
the use of deadly force. See § 18-1-704(1)-(2), C.R.S. 2024 (a
person may use deadly force only if, among other circumstances,
there are reasonable grounds to believe that he is in imminent
15 danger of being killed or of sustaining great bodily injury). But the
right to use force in self-defense is not unlimited. A person forfeits
that right if he was the “initial aggressor” — the person who
“initiated the physical conflict by using or threatening the imminent
use of unlawful physical force,” Castillo, ¶ 41 (citation omitted);
§ 18-1-704(3)(b) — or if he provoked the victim to attack him so that
he could then use physical force against the victim, Galvan v.
People, 2020 CO 82, ¶ 19; § 18-1-704(3)(a).
¶ 35 We review de novo whether there was sufficient evidence to
support an instruction. Castillo, ¶ 32. We reverse based on a
preserved claim of an instructional error only “if the error
substantially influenced the verdict or affected the fairness of the
trial proceedings.” Id. at ¶ 57 (quoting Hagos, ¶ 12).
¶ 36 This was not a self-defense case, or even a case in which
counsel advanced alternative defenses, one being self-defense. So
even assuming the court erred by instructing the jury on exceptions
to self-defense, any error was surely harmless.
¶ 37 In her opening statement, defense counsel did not say the case
involved self-defense. She told the jury that the evidence did not
support a finding of first degree murder because Zotto was “drunk
16 and emotional” and acted “impulsively and hastily” rather than
intentionally and after deliberation.
¶ 38 In closing argument, defense counsel did not once mention the
self-defense instruction or tell the jury that Zotto had shot his wife
in self-defense.4 No evidence supported a theory that his use of
deadly force was necessary to prevent him from being killed or
sustaining great bodily injury. Defense counsel theorized that the
victim was “leaning forward” at the time Zotto pulled the trigger, but
she did not explain why that mattered or even vaguely suggest that
the victim was advancing on Zotto or that she had made any
aggressive movements. There was no evidence to support such a
theory in any event. The only evidence about the victim’s actions
just before Zotto fired the gun came from Zotto’s statement to the
sister — that the victim was in a defensive position, with her hand
up and pleading with Zotto not to shoot.
4 Defense counsel argued that Zotto grabbed the gun from the
victim “in self-defense.” But Zotto was not prosecuted for injuries the victim might have sustained during any struggle over the gun. He was prosecuted for shooting the victim in the face after he had gained control of the gun.
17 ¶ 39 For this reason, defense counsel did not ask the jury to find
Zotto not guilty on the ground that the shooting was justified.
Instead, she argued that Zotto was guilty of manslaughter because
he had acted recklessly by pointing the already-cocked gun at the
victim while he was drunk. As the People point out, a claim that a
person acted recklessly is legally irreconcilable with a claim that he
acted in self-defense. See People v. Pickering, 276 P.3d 553, 556
(Colo. 2011).
¶ 40 On this record, there is no reasonable possibility that the jury
would have found Zotto not guilty based on self-defense if the
instruction had omitted the exceptions. Therefore, any error does
not warrant reversal.
IV. Disposition
¶ 41 The judgment is affirmed.
JUDGE J. JONES and JUDGE GOMEZ concur.