The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY March 21, 2019
2019COA38
No. 15CA0982, People v. Cohen — Evidence — Admissibility — Opening the Door Doctrine — Hearsay — Relevancy and Its Limits; Constitutional Law — Sixth Amendment — Confrontation Clause
A division of the court of appeals addresses the limits of the
“opening the door” doctrine — a fairness-related trial doctrine via
which one party may introduce otherwise inadmissible evidence
after the other party first “opens the door” to it. The division holds
that this doctrine is limited; any otherwise inadmissible evidence
introduced after one party opens the door must be confined to
preventing any unfair prejudice or misleading impression that
might otherwise result. The division also holds that certain
statements introduced in defendant’s trial went far beyond anything
allowed by the opening the door doctrine; were inadmissible on
hearsay, relevance, and undue prejudice grounds; and violated her Sixth Amendment rights under the Confrontation Clause. Because
the error in allowing this evidence was not harmless beyond a
reasonable doubt (or harmless), the division reverses defendant’s
convictions and remands for a new trial. COLORADO COURT OF APPEALS 2019COA38
Court of Appeals No. 15CA0982 Boulder County District Court No. 14CR437 Honorable Andrew Hartman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Emily Elizabeth Cohen,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE J. JONES Terry and Grove, JJ., concur
Announced March 21, 2019
Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Emily Elizabeth Cohen, a formerly licensed
Colorado lawyer, appeals the judgment of conviction entered on jury
verdicts finding her guilty of thirteen counts of theft. Among the
issues we address is whether defendant opened the door to
extensive evidence of the investigations the Colorado Office of
Attorney Regulation Counsel (OARC) conducted on her, and the
results of those investigations. We conclude that while some
evidence of the fact of and basis for the investigations could come
in, much of the evidence about the investigations, and OARC’s
findings, shouldn’t have. In so concluding, we reject the People’s
argument that defendant opened the door to all of the admitted
evidence, and discuss the limits of the opening the door doctrine.
In the end, we hold that the district court erred in admitting three
OARC complaints against defendant, and that the error wasn’t
harmless. We therefore reverse the judgment of conviction and
remand the case for a new trial.
I. Background
¶2 Defendant practiced law in Boulder, specializing in
immigration law. The People charged her with fifty-four counts of
theft, each relating to her alleged mishandling of client funds. More
1 specifically, the People alleged that defendant took cash payments
up front and then didn’t do the work she had agreed to do, became
difficult or impossible to contact, and didn’t provide her clients with
refunds.
¶3 The People ultimately tried defendant on twenty-one of the
charges. The prosecution called over a dozen witnesses, including
several of defendant’s former clients, many of whom testified as to
their payments, defendant’s failure to perform services, and their
difficulty getting in touch with her.
¶4 But a significant portion of the eleven-day trial focused on
defendant’s ethical obligations under the Colorado Rules of
Professional Conduct (RPC) and her failure to comply with those
obligations. For example, the prosecution presented evidence that
defendant spent client payments before earning them and often
deposited as yet unearned payments into her personal accounts
rather than into her attorney trust (COLTAF) account. 1 OARC
1 A COLTAF account is a type of trust account an attorney may use for all fees not yet earned (among other things). See Colo. RPC 1.15B. “COLTAF” stands for Colorado Lawyer Trust Account Foundation.
2 employees testified concerning attorneys’ ethical obligations under
the RPC and that defendant had been under investigation since
2012 for possible ethical violations. The court admitted into
evidence letters that defendant had received from OARC informing
her of the investigation. Over defense counsel’s objections, the
court also admitted three of the complaints that OARC had filed
against her. And the district court allowed another attorney to
testify at some length about her concerns that defendant hadn’t
behaved honestly and ethically in a variety of ways, none of which
related to the handling of client funds.
¶5 The district court instructed the jury on the elements of theft
and gave an instruction containing language from one of the Rules
of Professional Conduct relating to the handling of client funds.
That instruction (Instruction 11) quoted Colo. RPC 1.15A: “A lawyer
shall hold property of clients or third persons that is in the lawyer’s
possession in connection with a representation separate from the
lawyer’s own property. Funds shall be kept in trust accounts[.]” It
also included other language, not directly quoting the RPC,
explaining that client funds are not the attorney’s property until the
3 attorney earns them by “provid[ing] some benefit or service in
exchange for the fee . . . .”
¶6 After some deliberation, the jurors asked the court whether
they could use the OARC RPC charging decisions to inform their
decision-making; whether the OARC’s standard for verifying the
receipt of money by an attorney was the standard they should
apply; whether failure to deposit client funds into a COLTAF
account before earning fees constitutes “intent to permanently
deprive” (one of the elements of theft); and whether earning fees at a
later time can undo a prior COLTAF violation. The jurors also
indicated that they were deadlocked on at least one charge.
Perhaps without consulting defense counsel (the record isn’t clear
whether the attorneys were even in the room; defendant claims they
weren’t), and without defendant present, the court responded to the
jurors’ questions noted above by merely telling them they had all
the evidence they were to consider, they should follow the
instructions, and these were issues for them to decide. The court
(also apparently without consulting counsel and outside counsel’s
4 and defendant’s presence) also read the jurors a modified Allen
instruction. 2
¶7 The jury continued deliberating and returned guilty verdicts
on thirteen counts. It hung on one and acquitted on the remaining
seven.
II. Discussion
¶8 Defendant contends the district court erred by (1) admitting
the OARC complaints; (2) including the instruction about an
attorney’s ethical obligations vis-a-vis earning fees and handling
client funds; (3) allowing another immigration attorney to respond
at length to a juror’s question about defendant’s “red flags”; (4)
responding to jurors’ questions without consulting with her counsel
and outside her and her counsel’s presence; and (5) giving the jury
a modified Allen instruction without consulting her counsel and
outside her and her counsel’s presence. We agree with defendant
that reversal is required based on the court’s erroneous admission
2 A modified Allen instruction is a supplemental jury instruction that the court may provide when the jury indicates that it can’t come to unanimous agreement. In essence, it urges jurors to do so without sacrificing their independent judgment. Gibbons v. People, 2014 CO 67, ¶ 1.
5 of the OARC complaints. We also address the jury instruction issue
because it’s likely to arise again on remand.
A. OARC Complaints
¶9 First, defendant contends that the district court erred by
admitting the three OARC complaints into evidence. She argues
that the complaints were inadmissible for a number of reasons. We
conclude that while certain facts pertaining to the complaints had
some relevance to the charges, the complaints themselves are
replete with inadmissible hearsay. We also conclude that allowing
all this hearsay into evidence violated defendant’s Sixth Amendment
right to confrontation, and that, on the whole, the danger of unfair
prejudice, confusion of the issues, and misleading the jury
substantially outweighed the complaints’ limited probative value.
Because the error in admitting the totality of these complaints
wasn’t harmless, we must reverse defendant’s convictions.
1. Standard of Review
¶ 10 Ordinarily, we review a district court’s evidentiary rulings for
an abuse of discretion. Dunlap v. People, 173 P.3d 1054, 1097
(Colo. 2007); People v. Clark, 2015 COA 44, ¶ 14. But to the extent
such rulings impact a defendant’s rights under the Confrontation
6 Clause, we review challenges to them de novo. Bernal v. People, 44
P.3d 184, 198 (Colo. 2002).
¶ 11 The People concede that defendant preserved hearsay,
Confrontation Clause, and relevance/undue prejudice objections to
the complaints. So if we conclude that the court erred in applying
the Colorado Rules of Evidence, we must then reverse unless the
People show that the error was harmless, meaning that there is no
reasonable possibility that it contributed to defendant’s convictions.
Pernell v. People, 2018 CO 13, ¶ 22; see James v. People, 2018 CO
72, ¶ 18. If we conclude that the court violated defendant’s
constitutional right of confrontation, we must reverse unless the
People show that the error was harmless beyond a reasonable
doubt. Nicholls v. People, 2017 CO 71, ¶ 17; Hagos v. People, 2012
CO 63, ¶ 11. 3
3 The supreme court has recently articulated the tests for determining harmlessness beyond a reasonable doubt and harmlessness in identical terms: whether there is a reasonable possibility that the error contributed to the conviction. E.g., Zoll v. People, 2018 CO 70, ¶ 18 (citing Hagos v. People, 2012 CO 63, ¶ 11) (harmless beyond a reasonable doubt); Pernell v. People, 2018 CO 13, ¶ 22 (harmless). With all due respect, given that the prosecution has the burden under either standard, that can’t be right. As a matter of logic, and as the court recognized in Hagos,
7 2. Applicable Law
¶ 12 Hearsay — a statement by one other than the declarant while
testifying that is offered to prove the truth of the matter asserted —
is generally inadmissible. CRE 801(c); CRE 802; People v. Phillips,
2012 COA 176, ¶ 61. Such statements are “presumptively
unreliable.” Blecha v. People, 962 P.2d 931, 937 (Colo. 1998). But
a statement isn’t hearsay if it’s offered for a purpose other than to
prove the truth of the matter asserted — for example, to show its
effect on the listener. People v. Robinson, 226 P.3d 1145, 1151
(Colo. App. 2009). In such circumstances, the statement may be
admissible.
¶ 13 The Confrontation Clause says that in “all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The
United States Supreme Court has held that this clause bars out-of-
court testimonial statements unless the declarant is available to be
¶ 12, reversal must be more difficult to obtain under the harmless error standard than under the harmless beyond a reasonable doubt standard. Perhaps the supreme court should resolve this conundrum.
8 cross-examined or the defendant had a prior opportunity to cross-
examine the declarant. Crawford v. Washington, 541 U.S. 36, 53-
54 (2004). Generally, a statement is testimonial if its primary
purpose is to establish or prove past events potentially relevant to a
later trial. Davis v. Washington, 547 U.S. 813, 822 (2006); see also
Crawford, 541 U.S. at 51-52.
¶ 14 Even apart from hearsay and Confrontation Clause
limitations, evidence must, of course, be relevant — that is, it must
have some tendency to make the existence of a fact of consequence
more or less probable. CRE 401; CRE 402. But even if evidence is
relevant, the court must still exclude it if the danger of unfair
prejudice, confusion of the issues, or misleading the jury
substantially outweighs that evidence’s probative value. CRE 403.
3. The Complaints
¶ 15 OARC filed its first complaint against defendant in February
2011. That complaint alleged that defendant had failed to disclose
information on her application to the Colorado bar, including her
maiden name, certain employment history, and past due debts; that
she had practiced law without a license; that she had testified
9 falsely that she was licensed in Texas; and that she had filed false
affidavits with the Denver County Court.
¶ 16 During defendant’s trial in this case, the prosecutor sought to
admit a copy of this complaint. Defense counsel objected based on
relevance, hearsay, and confrontation. The court admitted the
complaint over these objections but didn’t say why.
¶ 17 OARC filed two more complaints against defendant in 2013
and 2014, respectively. These complaints included information
similar to the criminal allegations against defendant (that she had
kept clients’ money despite doing little or no work on their cases),
but discussed former clients not named in the criminal charges for
which she was on trial. 4 In total, the second and third complaints
alleged seventy-eight RPC violations. But in addition to the
information that tracked allegations in this case, the OARC
complaints contained other negative allegations against defendant,
4 The People had charged defendant with theft in relation to three of the clients mentioned in these complaints. But before trial, they had dismissed two of those charges without prejudice. So only one of the allegations in the complaints involved the specific conduct for which defendant was on trial at the time.
10 including that she had incorrectly advised clients on how to qualify
for certain visas.
¶ 18 Defense counsel objected to the admission of the second and
third complaints on grounds of prejudice, relevance, CRE 404(b),
and confrontation. The prosecutor responded that the complaints
were relevant because they addressed “exactly the same kind of
client handling issues” as those in the criminal case, and because
they showed defendant’s mental state. The court then admitted the
complaints because they “put the defendant on notice of her
obligations, and that definitely impacts the intent element in the
pending complaint.”
4. Analysis
a. Hearsay
¶ 19 The complaints are replete with OARC’s and defendant’s
former clients’ assertions of unethical conduct; many of the
assertions don’t have any bearing on whether defendant committed
theft. To be sure, the fact that OARC had informed defendant of
her ethical obligations concerning handling of client funds bore
somewhat on defendant’s knowledge and intent, but the lengthy
complaints went far beyond those issues. Indeed, the first
11 complaint didn’t bear on those issues at all. And contrary to the
People’s assertion, the prosecution used the complaints for the
truth of the matters asserted therein. For example, during cross-
examination, the prosecutor asked defendant to confirm aspects of
the first complaint (primarily relating to her honesty) and asked
whether she agreed that “this is what [OARC] concluded after their
investigation . . . .” During rebuttal closing, the prosecutor argued
that the complaints showed that defendant had “committed
perjury” before another judge and had in fact been untruthful on
several occasions. The prosecutor also argued, by clear implication,
that because the allegations in the latter two complaints were
similar to those in this case, the jury could see there was truth in
the criminal charges.
¶ 20 We aren’t persuaded by the People’s contention that the
complaints weren’t hearsay because they were admitted to show
defendant’s intent. The first complaint had nothing to do with
mishandling client funds. It’s true that defendant’s receipt of the
second and third OARC complaints put her on notice of her ethical
obligations, and therefore cast some light on her intent. But the
complaints themselves weren’t necessary to make that point and, as
12 discussed, weren’t actually used to make it. By the time the
prosecutor moved to admit each complaint, the jury had already
heard testimony from OARC attorneys and defendant herself about
the fact and bases of the investigations and establishing that
defendant had received the complaints. So admitting the actual
complaints added nothing of relevance to the prosecution’s theory
that defendant knew she was mishandling client funds.
¶ 21 Nor are we persuaded by the People’s argument that the OARC
complaints were admissible because defense counsel opened the
door to them during opening statements. Otherwise inadmissible
evidence can become admissible if the defendant first “opens the
door” to it. See Golob v. People, 180 P.3d 1006, 1012 (Colo. 2008)
(“When a party opens the door to otherwise inadmissible evidence,
his opponent may then inquire into the previously barred matter.”).
¶ 22 Defense counsel had implied during opening that the OARC
investigations began because of “an inflammatory letter” sent by
defendant’s child’s father and that the investigator was biased
against her. And so, the People say, the complaints could come in.
We aren’t persuaded.
13 ¶ 23 The concept of “opening the door” isn’t unlimited. It
“represents an effort by courts to prevent one party in a criminal
trial from gaining and maintaining an unfair advantage by the
selective presentation of facts that, without being elaborated or
placed in context, create an incorrect or misleading impression.”
Id. So otherwise inadmissible rebuttal evidence “is permitted ‘only
to the extent necessary to remove any unfair prejudice which might
otherwise have ensued from the original evidence.’” United States v.
Martinez, 988 F.2d 685, 702 (7th Cir. 1993) (quoting United States
v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971)); accord, e.g.,
State v. Groce, 111 A.3d 1273, 1277 (Vt. 2014); see generally
1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 1:12, at 70-75 (4th ed. 2013) (discussing the necessary “fit”
between the initial proof and the proposed counterproof). The
opening the door doctrine, therefore, can be used only to prevent
prejudice; it can’t be used as an excuse to inject prejudice into the
case. United States v. Johnson, 502 F.2d 1373, 1376 (7th Cir.
1974); United States v. Beno, 324 F.2d 582, 588-89 (2d Cir. 1963);
State v. Batchelor, 376 A.2d 737, 740 (Vt. 1977) (the doctrine isn’t a
tool for “prosecutorial ‘over-kill’”); see Mueller & Kirkpatrick, § 1:12,
14 at 73 (the doctrine is “supposed to prevent prejudice (not to
introduce or exacerbate it)”). And in like vein, it doesn’t “give an
opponent unbridled license to introduce otherwise inadmissible
evidence into the trial, nor does it justify receipt of rebuttal evidence
merely because it is in the same category of excludable evidence as
the evidence previously offered.” Martinez, 988 F.2d at 702.
“Where the rebuttal evidence does not directly contradict the
evidence previously received, or goes beyond the necessity of
removing prejudice in the interest of fairness,” it shouldn’t be
admitted. Id.; accord United States v. Jett, 908 F.3d 252, 271 (7th
Cir. 2018) (and noting that “[t]he gist of the doctrine is
proportionality and fairness”); see Mueller & Kirkpatrick, § 1:12, at
75 (“The question in each case is not whether initial proof shares
some common quality with proof offered in response. Rather, it is
whether the latter answers the former, and whether it does so in a
reasonable way without sacrifice of other important values.”).
¶ 24 This limited purpose is evident in the supreme court’s
reasoning in People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).
In that case, during cross-examination, defense counsel asked an
officer if he had drawn his gun when he approached the defendant.
15 The officer said “yes.” On redirect, the prosecutor asked the officer
why he had drawn his gun, and the officer explained that the
defendant was reported to have a weapon. The court had
previously ruled this information inadmissible. The supreme court
held that even though the information was otherwise inadmissible,
the defense had opened the door to the topic by asking if the officer
had drawn his gun. Id. at 145, 590 P.2d at 958. This is because
the prosecutor “had a right to explain or rebut any adverse
inferences which might have resulted” from that question. Id. at
146, 590 P.2d at 958.
¶ 25 Similarly, in People v. Davis, 312 P.3d 193 (Colo. App. 2010),
aff’d on other grounds, 2013 CO 57, defense counsel asserted
during his opening statement that a prosecution witness only
provided helpful information to the police officer after her interview
had become confrontational (suggesting that she had been coerced
into changing her story). Id. at 196-97. A division of this court held
that this opened the door to the officer’s response to the
16 prosecutor’s question why the officer began questioning the witness
in a more confrontational manner. Id. at 197.5
¶ 26 These cases tell us, consistent with the out-of-state authority
cited above, that when one party injects a particular issue into a
case, the opposing party may introduce otherwise inadmissible
evidence only to the extent necessary to “rebut any adverse
inferences which might have resulted,” Tenorio, 197 Colo. at 146,
590 P.2d at 958, or to correct “an incorrect or misleading
impression.” Golob, 180 P.3d at 1012.
¶ 27 In this case, the prosecutor actually discussed the OARC
investigations before defense counsel did. But in light of the
purpose of the “opening the door” rule, we’ll assume that the
defense’s implicit characterization of the investigations as grounded
in bias opened the door to further evidence on the matter.
¶ 28 Evidence that the complaints existed and evidence of why they
were filed was admissible to rebut the implication that OARC had a
5 See also People v. Pernell, 2014 COA 157, ¶ 37 (upholding the admission of a victim’s (prior consistent) hearsay statements to rehabilitate her credibility after the defense claimed that she had fabricated her allegations), aff’d on other grounds, 2018 CO 13.
17 vendetta against defendant. See id.; Tenorio, 197 Colo. at 146, 590
P.2d at 958. (And for reasons discussed above, limited testimony
about the complaints was admissible to show defendant’s
knowledge and intent.) Even so, the fact that defense counsel
mentioned the OARC investigations and the investigator’s supposed
bias didn’t give the prosecution carte blanche to introduce any and
all evidence related to the investigations, including the entire
complaints themselves, which contained a great deal of additional
irrelevant and prejudicial information as well as OARC’s
conclusions that defendant had acted unethically. Nor did it give
the prosecutor license to argue that the allegations in the
complaints — many of which had nothing to do with client funds —
were true. And we note that the court didn’t do anything to limit
the jury’s consideration of the complaints to the issues of bias,
knowledge, and intent.
¶ 29 In sum, we conclude that the complaints were, in very large
part, inadmissible hearsay. It follows that the court erred in
admitting the complaints, or at least in admitting them in their
entirety.
18 b. Confrontation Clause
¶ 30 A statement is testimonial for Confrontation Clause purposes
if it was made under circumstances that would lead an objective
witness to believe that the statement would be available for use at a
later trial. United States v. Summers, 414 F.3d 1287, 1301-02 (10th
Cir. 2005); Compan v. People, 121 P.3d 876, 880 (Colo. 2005),
overruled on other grounds by Nicholls v. People, 2017 CO 71.
¶ 31 The hearsay statements in the complaints by witnesses were
testimonial. The declarants volunteered information to OARC
knowing that their statements could be used to support an
investigation of — and possible sanctions against — defendant.
And they could have anticipated that a criminal investigation and
criminal charges would result. See Davis, 547 U.S. at 821; People
v. Cevallos-Acosta, 140 P.3d 116, 129 (Colo. App. 2005) (the
declarant’s intent should be considered when determining whether
a statement is testimonial). The People don’t argue otherwise.
¶ 32 Only one of the declarants testified at trial. Defendant
therefore didn’t have an opportunity to question most of them about
statements in the complaints. As a result, admitting the complaints
19 in their entirety violated defendant’s constitutional right to
confrontation.
c. Danger of Unfair Prejudice
¶ 33 We also conclude that, even if we assume portions of the
complaints had some relevance, that relevance was substantially
outweighed by the danger of unfair prejudice. As discussed,
admitting the complaints themselves wasn’t necessary to show
defendant’s knowledge and intent or to rebut any implication of
bias. And they contained a great deal of information about
unrelated alleged ethical violations. Perhaps more importantly, the
complaints added to the impression, clearly conveyed by the
prosecution, that the case was about whether defendant had
practiced law in accordance with her ethical obligations. Those
ethical obligations, however, didn’t set the standard for criminal
culpability. As discussed below, the complaints, and much of the
other evidence, actually confused the jurors; they didn’t know
whether a breach of ethical obligations established elements of the
theft charges. Though we must assume the maximum probative
value and minimum unfair prejudice of the evidence, see People v.
Rath, 44 P.3d 1033, 1043 (Colo. 2002), the balance in this case
20 clearly weighs against the admissibility of the complaints (again, at
least in their entirety).
d. Harmlessness
¶ 34 Having determined that the district court erred, we must
consider whether the People have shown that the error was
harmless beyond a reasonable doubt. They haven’t. 6
¶ 35 No doubt, there was sufficient admissible evidence that would
support the guilty verdicts. But the prosecution spent a
considerable amount of time, both during the evidentiary part of the
trial and in closing, using the OARC complaints to demonstrate that
defendant routinely lied and violated ethical rules. That evidence
and argument painted defendant as dishonest and unethical.
Indeed, the first complaint, which didn’t have anything to do with
alleged mismanagement of clients’ money, established only that
OARC believed defendant had lied repeatedly in unrelated matters.
¶ 36 The jurors asked a number of questions indicating that the
OARC evidence deeply impacted their view of the case; they seemed
6Nor have the People shown that the nonconstitutional error was harmless.
21 to think that the ethical standards equated to some of the elements
of theft. The trial’s focus on the ethical violations no doubt led to
their confusion about how to apply the law and reach a verdict.
¶ 37 True, the jury acquitted defendant of some charges. But,
contrary to the People’s suggestion, that doesn’t preclude the
existence of a reasonable possibility that the inadmissible evidence
influenced the jury’s guilty verdicts. And we conclude that there is
such a possibility. We must therefore reverse the judgment.
B. Jury Instructions
¶ 38 We address defendant’s contention regarding the instruction
on handling client funds because the issue whether such an
instruction is appropriate is likely to arise in the event of a retrial.
¶ 39 As noted, in addition to the instructions defining the elements
of theft, the court gave the jury an instruction — Instruction 11 —
quoting provisions of the RPC and defining when an attorney
“earns” the money her clients pay her. The court provided no
explanation of how the jury was to apply that instruction. And the
jury indicated it didn’t understand how to apply it: the jurors
submitted a question to the court asking whether failure to deposit
client funds into a COLTAF account established the intent element
22 of theft. In response, the court merely referred the jury back to the
instructions.
¶ 40 A court must accurately instruct the jury on the law relevant
to each issue presented, but it must not give an instruction that
misstates the law or “unduly emphasizes some part of the
evidence.” People v. Ellsworth, 15 P.3d 1111, 1116 (Colo. App.
2000). If the court gives the jury an instruction that contains
technical information separate from the elements of the crimes at
issue, the court should explain the instruction so that the jury can
understand what it means and how to apply it. See Pueblo Bank &
Tr. Co. v. McMartin, 31 Colo. App. 546, 549, 506 P.2d 759, 761
(1972) (it was reversible error to include language of a highly
technical statute in the jury instructions without sufficient
explanation how the jury could properly interpret its meaning and
apply it). And, when a jury asks a question, an additional
instruction is appropriate unless
(i) the jury may be adequately informed by directing [its] attention to some portion of the original instructions; (ii) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or (iii) the request would call upon the judge to express
23 an opinion upon factual matters that the jury should determine.
Leonardo v. People, 728 P.2d 1252, 1255 (Colo. 1986).
¶ 41 The language of Instruction 11 wasn’t objectionable. The
instruction accurately stated Colorado’s ethical rules on how an
attorney should handle client funds. And it could have helped the
jurors understand the elements “without authorization” and
“intent” in the context of the case. But the instruction was, at best,
incomplete: the district court didn’t tell the jurors how to use the
instruction and what its limits were. In not doing so, the court
erred.
¶ 42 The jury’s confusion about how to apply Instruction 11 was
evident. Even after hearing all the instructions and deliberating, we
know that at least one juror was unclear on how a violation of
attorney ethical rules would impact the determination of
defendant’s guilt. At that point, the district court had another
opportunity to tell the jury how it could consider defendant’s failure
to deposit client funds into her COLTAF account. The court should
have done so.
24 ¶ 43 On remand, in the event of a new trial, any instruction along
these lines must be accompanied by an explanation of how it bears
on the issues that the jury must resolve and must make clear that
violations of ethical rules don’t, by themselves, prove any of the
elements of theft.
III. Conclusion
¶ 44 We reverse the judgment and remand the case for a new trial.
In the event of a new trial, the court should maintain a tight rein on
what evidence is introduced and how the jury is instructed so that
the trial doesn’t again devolve into largely an extended inquiry into
defendant’s compliance with her ethical obligations.
JUDGE TERRY and JUDGE GROVE concur.