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 February 27, 2025
2025COA23
No. 23CA0085, People v. Gray — Constitutional Law — Sixth Amendment — Confrontation Clause; Evidence — Witnesses — Cross-Examination — Probationary Status
This is the first published opinion to consider whether the
holding of Margerum v. People, 2019 CO 100, 454 P.3d 236 — that
criminal defense counsel can always cross‑examine a witness
regarding the witness’s probationary status — extends to situations
where the witness was on probation when the witness provided law
enforcement officers with a statement regarding the underlying
incident but is no longer on probation at the time of trial. The
division concludes that, under the facts of this case, the Margerum
rule does not apply to a witness who satisfied the terms of his
probation before trial. COLORADO COURT OF APPEALS 2025COA23
Court of Appeals No. 23CA0085 Weld County District Court No. 21CR1485 Honorable Julie C. Hoskins, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Mardi Jean Gray,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE LIPINSKY Johnson and Moultrie, JJ., concur
Announced February 27, 2025
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendants in Colorado have the unconditional right to
cross-examine a prosecution witness about the witness’s
probationary status when the witness is on probation in the “same
sovereign” at the time of trial. Margerum v. People, 2019 CO 100,
¶ 12, 454 P.3d 236, 240. The supreme court noted in Margerum
that, “when a prosecution witness is on probation, the key question
is whether there exists a ‘might have been influenced nexus’
between the witness’s probationary status and her potentially
biased motive for testifying.” Id. at ¶ 11, 454 P.3d at 239 (quoting
Kinney v. People, 187 P.3d 548, 560 (Colo. 2008)). For this reason,
the jury must be permitted to consider whether the witness’s trial
testimony “could be prompted by fear or concern for possible
jeopardy to his probationary status,” id. (quoting People v. Bowman,
669 P.2d 1369, 1375 (Colo. 1983)), and whether the witness “might
be influenced by a promise of, or hope or expectation of, immunity
or leniency,” id. (quoting People v. King, 498 P.2d 1142, 1144-45
(Colo. 1972)). “Therefore, the defense must be permitted to
question a prosecution’s witness about her probationary status
when the witness is on probation in the same sovereign as the
prosecution.” Id. at ¶ 12, 454 P.3d at 240.
1 ¶2 A division of this court extended the reasoning of Margerum to
situations where the witness faces criminal charges in the same
judicial district in which the prosecution seeks the witness’s
testimony. See People v. Reynolds-Wynn, 2024 COA 33, ¶ 36, 551
P.3d 1211, 1218. As the Reynolds-Wynn division explained, “the
defense must be permitted to question a prosecution witness about
his pending criminal charge in the same judicial district in which
the witness is testifying against the defendant” because, consistent
with the reasoning of Margerum, “[t]he pendency of such a charge
against the witness is always relevant to show that the witness’s
testimony ‘might be influenced by a promise for, or hope or
expectation of, immunity or leniency.’” Id. (quoting Kinney, 187
P.3d at 560).
¶3 In this appeal, Mardi Jean Gray seeks reversal of her
judgment of conviction for second degree assault and third degree
assault. She contends that the trial court violated her
constitutional right to confront her accusers by not permitting her
to cross-examine Timothy Canciamilla, the alleged victim, about his
probationary status at the time he spoke with police officers
regarding an incident in which Gray struck and choked him (the
2 incident), even though Canciamilla was no longer on probation at
the time of trial. We decline to extend the unconditional right of
cross-examination articulated in Margerum to cases where the
witness is no longer on probation at the time of trial.
¶4 Gray also raises a sufficiency of the evidence challenge,
contending that the prosecution failed to disprove her affirmative
defense of self-defense beyond a reasonable doubt.
¶5 Because we disagree with both contentions, we affirm.
I. Background
¶6 Gray and Canciamilla were dating at the time of the incident.
There was no dispute that Gray repeatedly struck Canciamilla and
choked him. Gray’s theory of defense at trial was that she had
acted in self-defense after Canciamilla shoved her down stairs by
the throat. In Part II.A.1 below, we summarize the evidence
introduced at trial regarding the incident.
¶7 We address Gray’s sufficiency of the evidence argument first
because, if we were to reverse on that issue, we would not need to
address her argument that the court abused its discretion and
violated her rights under the Confrontation Clauses of the United
States and Colorado Constitutions.
3 II. Analysis
A. Sufficiency of the Evidence Regarding Gray’s Affirmative Defense of Self-Defense
1. Additional Facts
¶8 The jury could reasonably have found the following facts from
the evidence introduced at trial.
¶9 Gray and Canciamilla began arguing in Gray’s home one
evening after they had been drinking together. Edward Epperson;
his wife, Desiree Jones; and their children, who also lived in the
house, were present during the incident.
¶ 10 Epperson told Gray and Canciamilla to stop arguing and to
“keep it down.” Gray asked Canciamilla to leave the house. He
walked to his car, realized he was too intoxicated to drive, and
returned to the house.
¶ 11 One of Epperson and Jones’s children ran out of the house
and told Canciamilla that Gray had “scratched her or something.”
Canciamilla confronted Gray in the basement.
¶ 12 Canciamilla “screamed and yelled” at Gray, saying, “[I]f you’re
going to hit a child, hit me.” Canciamilla told the responding
officers that Gray then paused and started hitting him on the side
4 of the head. After Canciamilla said, “[I]s that all you have?” Gray
put her hands around his throat and squeezed his neck.
Canciamilla struggled to breathe, gasped for air, and gagged.
Epperson testified that Canciamilla was “pretty purple” and that
“his eyes rolled in the back of his head like he was gasping for air.”
¶ 13 Gray struck Canciamilla five or six times. Canciamilla told the
officers that he did not defend himself and did not put his hands on
Gray.
¶ 14 Epperson grabbed Gray, pulled her off Canciamilla, and told
her to go upstairs. Jones called a friend, Chelsea Kretzmeier, and
asked her to “come get the kids and . . . get them out of the house
until [Jones] could get the situation resolved.”
¶ 15 When Kretzmeier arrived at the house, Gray “was yelling and
screaming” at Epperson and Jones. Kretzmeier testified that Gray
“went after [Canciamilla] as he went outside,” and she was “still
screaming and yelling.” Canciamilla was crying by his car.
Kretzmeier said she had to use physical force to keep Gray away
from Canciamilla. Kretzmeier testified, “When it was clear to me
that [Gray] was not going to de-escalate, I told [Jones] it was time to
call the cops, that this was getting out of control.”
5 ¶ 16 Jones called 911. The responding officers spoke with Gray,
Canciamilla, Epperson, Jones, and Kretzmeier.
¶ 17 Gray told Officer Janet Steingart that, before she struck
Canciamilla, “[h]e shoved me down the stairs by my throat.” Officer
Steingart said that Gray gave her a tour of the house and showed
her the stairs down which Canciamilla allegedly shoved her.
According to Officer Steingart, the landing at the bottom of the
stairs was made of concrete.
¶ 18 Officer Steingart reported seeing dried blood on Gray’s lips,
although she did not observe any physical evidence that Gray had
been thrown down the stairs to the basement, as she claimed.
According to Officer Steingart, Gray did not have any injuries
“consistent with being shoved down” stairs or hitting concrete, and
there was no “hole in the wall” or other indicia of a fight at the
stairs. Kretzmeier testified that Gray said the incident was not her
fault and that Kretzmeier did not observe any injuries on Gray “that
[she] could tell.”
¶ 19 Epperson told Officer Doryian Barboza that the dried blood
around Gray’s mouth may have resulted from her biting her lips or
6 from her “bad gums.” Gray told Officer Steingart that she had
“probably” bit her lip or tongue.
¶ 20 None of the witnesses, including the four witnesses the
defense called, said they saw or heard Canciamilla shove Gray down
the basement stairs. Gray exercised her Fifth Amendment right not
to testify. See People v. Roberson, 2016 CO 36, ¶ 21, 377 P.3d
1039, 1042-43 (“The Fifth Amendment to the United States
Constitution, which is applicable to the states through the
Fourteenth Amendment, . . . guarantees that no person ‘shall be
compelled in any criminal case to be a witness against himself.’”)
(quoting U.S. Const. amend. V); see also Colo. Const. art. II, § 18.
Therefore, Officer Steingart’s testimony regarding Gray’s statements
to her was the only evidence introduced at trial supporting the
defense’s argument that, before Gray struck and choked
Canciamilla, he had shoved Gray down stairs by the throat.
2. Standard of Review
¶ 21 “[W]e review the record de novo to determine whether the
evidence before the jury was sufficient both in quantity and quality
to sustain the convictions.” People v. Harrison, 2020 CO 57, ¶ 31,
465 P.3d 16, 23 (quoting Dempsey v. People, 117 P.3d 800, 807
7 (Colo. 2005)); see People v. Tomaske, 2022 COA 52, ¶¶ 31-32, 516
P.3d 534, 539-40 (explaining that the court reviews de novo
whether the prosecution presented sufficient evidence to disprove
an affirmative defense).
3. The Law Governing Sufficiency of the Evidence Challenges When a Defendant Argues Self-Defense
¶ 22 “The Due Process Clauses of the United States and Colorado
Constitutions require proof of guilt beyond a reasonable doubt on
each of the essential elements of a crime.” People v. Duncan, 109
P.3d 1044, 1045 (Colo. App. 2004). To determine whether the
prosecution presented sufficient evidence to support a defendant’s
conviction, we ask “whether the relevant evidence, both direct and
circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, is substantial and sufficient to support
a conclusion by a reasonable mind that the defendant is guilty of
the charge beyond a reasonable doubt.” People v. Donald, 2020 CO
24, ¶ 18, 461 P.3d 4, 7 (quoting Clark v. People, 232 P.3d 1287,
1291 (Colo. 2010)). In conducting this analysis, we “give the
prosecution the benefit of every reasonable inference which might
8 be fairly drawn from the evidence.” Harrison, ¶ 32, 465 P.3d at 23
(quoting People v. Perez, 2016 CO 12, ¶ 25, 367 P.3d 695, 701).
¶ 23 A defendant may raise a sufficiency of evidence argument for
the first time on appeal, as Gray did here. See McCoy v. People,
2019 CO 44, ¶ 2, 442 P.3d 379, 382.
¶ 24 “‘Affirmative defense’ means that unless the state’s evidence
raises the issue involving the alleged defense, the defendant, to
raise the issue, shall present some credible evidence on that issue.”
§ 18-1-407(1), C.R.S. 2024. When a defendant asserts an
affirmative defense, it “effectively becomes an additional element of
the charged offense.” Roberts v. People, 2017 CO 76, ¶ 22, 399 P.3d
702, 705.
¶ 25 “If the issue involved in an affirmative defense is raised, then
the guilt of the defendant must be established beyond a reasonable
doubt as to that issue as well as all other elements of the offense.”
§ 18-1-407(2). “[T]he prosecution bears the burden of proving
beyond a reasonable doubt that the affirmative defense is
inapplicable.” Roberts, ¶ 22, 399 P.3d at 705. Thus, “[w]hile the
defendant bears the burden of going forward, Colorado law dictates
that once that burden has been met, the prosecution has the
9 burden of disproving the claimed affirmative defense beyond a
reasonable doubt.” People v. Garcia, 113 P.3d 775, 784 (Colo.
2005).
¶ 26 Self-defense is an affirmative defense created by statute.
Section 18-1-704(1), C.R.S. 2024, says, in relevant part, that
a person is justified in using physical force upon another person in order to defend [herself] . . . from what [she] reasonably believes to be the use or imminent use of unlawful physical force by that other person, and [she] may use a degree of force which [she] reasonably believes to be necessary for that purpose.
¶ 27 A defendant is entitled to an instruction on self-defense if the
defendant presents “some credible evidence” supporting that
affirmative defense. Pearson v. People, 2022 CO 4, ¶ 23, 502 P.3d
1003, 1008. In this case, the court gave the jury a self-defense
instruction. Thus, the issue before us is not whether Gray was
entitled to argue self-defense based on the evidence introduced at
trial; rather, we must decide whether, after considering the
evidence, the jury could reasonably have found that the prosecution
disproved beyond a reasonable doubt either of the two prongs of
self-defense specified in section 18-1-704(1).
10 ¶ 28 Therefore, the prosecution could have defeated Gray’s
affirmative defense of self-defense by proving beyond a reasonable
doubt that Gray (1) did not reasonably believe that Canciamilla was
using or would imminently use unlawful physical force or (2) did not
use a degree of force which she reasonably believed to be necessary
to defend herself. See § 18-1-704(1).
4. The Prosecution Introduced Sufficient Evidence to Disprove Gray’s Self-Defense Affirmative Defense Beyond a Reasonable Doubt
¶ 29 We initially consider whether the prosecution’s evidence was
“sufficient to disprove beyond a reasonable doubt” that Gray
reasonably believed Canciamilla was using or would imminently use
unlawful physical force. Harrison, ¶¶ 10-12, 24, 36-39, 41, 465
P.3d at 19-20, 22, 24-25 (holding that the prosecution presented
sufficient evidence to disprove the defendant’s affirmative defense
that someone had in good faith reported defendant’s drug overdose
to “the 911 system” and, therefore, defendant was immune from
liability for possession of a controlled substance and drug
paraphernalia). “The touchstone of self-defense is whether, from
the standpoint of the defendant, [her] belief that danger was
imminent is reasonable.” People v. Rodriguez, 888 P.2d 278, 286
11 (Colo. App. 1994). We disagree with Gray’s implication that her
statement to Officer Steingart that Canciamilla shoved her down the
basement stairs by the throat, without more, establishes that the
prosecution failed to meet its burden of proof on the first prong of
section 18-1-704(1).
¶ 30 As noted above, no witnesses testified that they had seen or
heard Canciamilla shove Gray down the basement stairs, much less
shove her by the throat. Rather, the witnesses in the house at the
time of the incident painted a picture of a one-sided altercation in
which Gray struck the first blow, and Canciamilla passively took
Gray’s blows without fighting back. Canciamilla told the officers
that, although he “screamed and yelled” at Gray, he did not “get
physical” with her and did not defend himself. He said he made
“the conscious decision not to hit her back.”
¶ 31 Epperson testified that he heard Gray yelling at Canciamilla,
did not “hear any items being knocked over or anything like that” —
“just the yelling” — and saw Gray with “her hands around
[Canciamilla’s] throat.” Kretzmeier testified that she (1) only heard
one person — Gray — yelling; (2) saw Gray follow Canciamilla
outside the house “screaming and yelling”; (3) observed Canciamilla
12 crying; (4) had to use physical force to keep Gray away from
Canciamilla because Gray “would just not stop”; (5) did not see any
injuries on Gray; and (6) observed fresh scratch marks and bruises
on Canciamilla’s neck and arms. Jones testified that she saw Gray
strike Canciamilla and saw Gray’s right hand on his throat. Jones
further said that Canciamilla did not try to defend himself.
¶ 32 It was the jury’s role to decide the credibility of the witnesses.
“We do not reweigh the evidence or assess witnesses’ credibility on
appeal because the jury is the sole judge of witness credibility.”
People v. Griffiths, 251 P.3d 462, 465 (Colo. App. 2010). In light of
the evidence presented at trial, the jury could have disbelieved
Gray’s statement to Officer Steingart that Canciamilla had pushed
her down stairs by her throat. Cf. People v. Kessler, 2018 COA 60,
¶ 12, 436 P.3d 550, 554 (The “fact finder is not required to accept
or reject a witness’s testimony in its entirety; it may believe all, part,
or none of a witness’s testimony.”). Therefore, the jury could have
reasonably found that the prosecution proved beyond a reasonable
doubt that Gray did not reasonably believe Canciamilla was using
or would imminently use unlawful physical force.
13 ¶ 33 Next, we consider whether the evidence was sufficient to
support a finding beyond a reasonable doubt that Gray did not use
a degree of force that she reasonably believed was necessary — the
second prong of section 18-1-704(1). As noted above, the evidence
supported a finding that Canciamilla did not push Gray down the
basement stairs and that, although Canciamilla yelled at Gray, he
did not use physical force against her or indicate that he was about
to use physical force. Rather, the unrebutted evidence showed that
Gray repeatedly struck Canciamilla; she choked him until he
struggled to breathe, gasped for air, and gagged; and Canciamilla
passively allowed Gray to hit him again and again. Given these
facts, the jury could have reasonably concluded that the
prosecution proved beyond a reasonable doubt that Gray used an
unreasonable amount of physical force against Canciamilla.
¶ 34 Accordingly, we hold that the evidence, when viewed as a
whole and in the light most favorable to the prosecution, was
substantial and sufficient to support a conclusion by a reasonable
mind that Gray did not act in self-defense.
14 B. Cross-Examination of Canciamilla Regarding His Probationary Status at the Time He Spoke with Responding Officers
¶ 35 Canciamilla told the police officers who responded to Jones’s
911 call that:
• He had drunk seven or eight shots of whiskey that night.
• He had been hit and choked.
• The hitting and choking had made his throat hurt.
Canciamilla also admitted to the officers that he began yelling at
Gray before she raised her voice at him. But as we explain below,
the jury did not hear what Canciamilla told the officers about the
altercation.
¶ 36 At the time of the incident, Canciamilla was on probation for a
misdemeanor conviction for driving under the influence. Under the
terms of his probation, he was not permitted to consume alcohol or
violate any state or federal law. He was no longer on probation
when the trial began, however.
¶ 37 Before opening statements, defense counsel argued that,
following Margerum, the court should permit her to cross-examine
Canciamilla about his probationary status at the time he spoke
15 with the officers to demonstrate that he had a “bias[ed] motive for
. . . making the police report and claiming essentially that it was an
unprovoked attack.” Defense counsel asserted that Gray had the
right to argue to the jury that Canciamilla had “a pretty strong bias
and motive for him to fabricate essentially being a victim” in his
discussions with the officers to avoid revocation of his probationary
status and that the jury could therefore conclude he was the initial
aggressor, and Gray had acted in self-defense. The court disagreed,
noting that because Canciamilla was no longer on probation, he
was not in a vulnerable position at the time of trial.
¶ 38 A defendant implicates the Confrontation Clauses in the
United States and Colorado Constitutions, U.S. Const. amend VI;
Colo. Const. art. II, § 16, by arguing that the trial court erroneously
prohibited her counsel from cross-examining a witness regarding
the witness’s probationary status. See Reynolds-Wynn, ¶ 32, 551
P.3d at 1218. We review de novo a defendant’s contention that the
trial court violated her rights under the Confrontation Clauses. Id.
at ¶ 31, 551 P.3d at 1218. If there is no infringement on “the
defendant’s rights secured by the Confrontation Clause” in the
16 United States Constitution, we review a trial court’s limitation on a
defendant’s cross-examination for an abuse of discretion. Merritt v.
People, 842 P.2d 162, 166 (Colo. 1992).
3. Under the Facts of the Case, Gray’s Counsel Did Not Have the Right to Cross-Examine Canciamilla Regarding His Probationary Status at the Time of the Incident
¶ 39 Gray asks us to extend Margerum’s reasoning by “allowing
cross-examination of a witness’s probationary status at the time of
the offense and relative to a witness’s statements before trial to
cooperate with police,” even if the witness is no longer on probation
at the time of trial. She quotes Margerum: “when a prosecution
witness is on probation, the key question is whether there exists a
‘might have been influenced nexus’ between the witness’s
probationary status and [his] potentially biased motive for
testifying” and “that this nexus always exists when a prosecution
witness is on probation in the same sovereign.” Margerum,
¶¶ 11-12, 454 P.3d at 239-40.
¶ 40 Criminal defendants have a constitutional right to confront the
witnesses against them. Id. at ¶ 10, 454 P.3d at 239 (citing U.S.
Const. amend VI; Colo. Const. art. II, § 16). “This right is primarily
secured through cross-examination.” Id. “[W]hen a witness testifies
17 against a party, the party has a right to impeach that witness’s
credibility.” Id. at ¶ 11, 454 P.3d at 239.
¶ 41 The cases that Gray cites in support of her argument that the
trial court violated her Confrontation Clause rights all concerned
witnesses who were involved with the criminal justice system when
they testified against the defendant or who had previously obtained
favorable treatment. See Delaware v. Van Arsdall, 475 U.S. 673,
679-80 (1986) (holding that the trial court violated the defendant’s
rights under the Confrontation Clause of the United States
Constitution by not permitting defense counsel to cross-examine a
witness about the dismissal of his criminal charge after he agreed to
speak with the prosecutor about the defendant’s alleged crime);
Davis v. Alaska, 415 U.S. 308, 309-11, 320-21 (1974) (concluding
that the trial court erred by barring defense counsel from
cross-examining a witness regarding his probationary status at the
time of his pretrial identification of the defendant and at the time of
trial); Margerum, ¶ 12, 454 P.3d at 240; Kinney, 187 P.3d at 559-61
(“[T]he trial court should allow broad cross-examination regarding
the witness’s motive for testifying whenever the witness has a
pending case and his or her ‘testimony against the defendant might
18 be influenced by a promise of, or hope or expectation of, immunity
or leniency with respect to the pending charges against him, as a
consideration for testifying against the defendant.’” (quoting King,
498 P.2d at 1144-45)); see also People v. Jones, 971 P.2d 243, 244
(Colo. App. 1998) (rejecting the defendant’s argument that evidence
of the victim’s probationary status was admissible to show that her
cooperation with, and statements to, police following the underlying
incident were motivated by her “vulnerable status as a probationer,”
because no evidence suggested the victim believed her probationary
status was in jeopardy), overruled on other grounds by People v.
Segovia, 196 P.3d 1126, 1132 (Colo. 2008).
¶ 42 In her appellate briefs, Gray does not direct us to any case
holding that a trial court necessarily violates the defendant’s
Confrontation Clause rights by barring defense counsel from
cross-examining a prosecution witness regarding the witness’s
probationary status at the time the witness reported the defendant’s
alleged criminal conduct to law enforcement officers, even though
the witness is no longer on probation at the time of trial. Likewise,
at oral argument, Gray’s counsel could not cite a case holding that
defendants have the right to cross-examine witnesses regarding
19 their probationary status when the witnesses are no longer on
probation when trial begins. Nonetheless, Gray urges us to extend
Margerum’s reasoning to such situations because a witness’s
probationary status at the time of the offense “may have acted as
motivation for the witness to cooperate with the police, especially
when the witness could hold a belief they otherwise could be
punished in relation to their probation or suspected of a crime.”
¶ 43 In Margerum, the court provided three reasons why “the
defense must be permitted to question a prosecution’s witness
about [his] probationary status when the witness is on probation in
the same sovereign as the prosecution.” ¶ 12, 454 P.3d at 240.
¶ 44 First, the court explained that “a prosecution witness who is
on probation in the same state court system in which [he] is
testifying is in a vulnerable position.” Id. “That witness’s ability to
remain on probation is potentially in jeopardy and the threat of
probation revocation — whether real or merely perceived — creates
an incentive for a witness to try to curry favor with the prosecution
who can seek the revocation of that witness’s probation.” Id.
¶ 45 Similarly, “a prosecution witness who faces a pending charge
in the same judicial district in which the prosecutor asks him to
20 testify is at least as vulnerable as a witness on probation.”
Reynolds-Wynn, ¶ 34, 551 P.3d at 1218. “This is so because
prosecutors have ‘broad discretion in the performance of [their]
duties,’ including whether to consent to a deferred prosecution,
whether and what type of plea deal to offer, the severity of the
sentence to recommend, or even whether to dismiss the charge.”
Id. (alteration in original) (quoting People v. Dist. Ct., 632 P.2d 1022,
1024 (Colo. 1981)); see also Van Arsdall, 475 U.S. at 679 (“By thus
cutting off all questioning” about the dismissal of the charge against
the witness, which “a jury might reasonably have found furnished
the witness a motive for favoring the prosecution in his testimony,
the court’s ruling violated respondent’s rights secured by the
Confrontation Clause.”).
¶ 46 Second, the court observed that “the desire to potentially curry
favor with a prosecutor who can affect a witness’s probation creates
at least a perception that the witness has a motive to provide
favorable testimony for the prosecution.” Margerum, ¶ 12, 454 P.3d
at 240.
¶ 47 Third, the court reiterated the well-established principle that
“the witness’s credibility is always relevant, meaning parties should
21 be afforded wide latitude during cross-examination to discover any
potential source of bias and, more importantly, to provide the jury
with all relevant information needed to make a credibility
determination.” Id.
¶ 48 The common thread running through the three reasons
underlying Margerum is the possibility that the jury could perceive
that the witness had an interest in currying favor with the
prosecution to attempt to obtain a benefit that the prosecution had
the power to confer, such as dismissal of a criminal charge, see Van
Arsdall, 475 U.S. at 679-80; immunity or leniency regarding
pending charges, see Reynolds-Wynn, ¶ 34, 551 P.3d at 1218;
Kinney, 187 P.3d at 560-61; or favorable treatment while on
probation, see Davis, 415 U.S. at 320-21; Margerum, ¶ 13, 454 P.3d
at 240; Jones, 971 P.2d at 244. Under these circumstances, the
jury could question the witness’s credibility if it believed the witness
was motivated by a desire to please the prosecution. Significantly,
the cases focus on how the witness’s trial testimony — not any
statements that the witness may have previously provided to law
enforcement officers — “might be influenced by a promise for, or
22 hope or expectation of, immunity or leniency.” Reynolds-Wynn,
¶ 36, 551 P.3d at 1218 (quoting Kinney, 187 P.3d at 560).
¶ 49 These reasons are premised on the assumption that the
witness could have reasonably contemplated what benefits he could
obtain in exchange for assisting the prosecution. But there is a
weaker connection between a witness’s consideration of this type of
possible agreement with prosecutors and the witness’s statements
to law enforcement officers regarding a purported criminal act.
¶ 50 When police officers ask a witness on probation for
information about a purported crime but the witness is no longer on
probation at the time of trial, the witness may have no reasonable
expectation that the prosecutors who possess the authority to seek
the revocation of the witness’s probationary status would give the
witness preferential treatment as a reward for the witnesses’ prior
cooperation with the officers. At the time the witness spoke with
the officers, the prosecutors likely knew nothing about the
purported crime. This situation is many steps removed from a
scenario in which the prosecution asks a witness on probation to
testify at trial. Those steps include the police officer’s decision to
arrest the defendant, the prosecution’s investigation into the
23 matter, its decision to bring charges against the defendant, and
finally its selection of which witnesses to call at trial.
¶ 51 For these reasons, we decline to apply Margerum’s bright-line
rule to witnesses who were on probation when they provided law
enforcement officers with information regarding the offense for
which the defendant was charged but who are no longer on
probation at the time of trial. Thus, we hold that a defendant has
no automatic right to cross-examine such a witness regarding that
witness’s one-time probationary status.
¶ 52 Cases from other jurisdictions confirm this conclusion. For
example, in State v. Rincker, the Nebraska Supreme Court held that
defense counsel has no right to cross-examine a witness regarding
his probationary status before trial. 423 N.W.2d 434, 441 (Neb.
1988). If the witness is no longer on probation at the time of trial,
he is “no longer vulnerable to the State’s reprisal” because “he had
been punished, and the effects of his violation of probation had
become final and could not be enhanced by State action.” Id. For
the same reasons, the Wyoming Supreme Court concluded that the
defense could not question a witness about her former status as a
probationer. Salaz v. State, 561 P.2d 238, 241 (Wyo. 1977) (“[T]he
24 witness . . . was not on probation or parole. She was not subject to
loss of freedom or other punishment due to the previous juvenile
adjudication. She had no fear of revocation of probation or parole if
she failed to cooperate with the police.”).
¶ 53 Our rejection of a bright-line rule that a defendant always has
the right to cross-examine a witness about the witness’s earlier
probationary status if the witness is no longer on probation by the
time of trial does not mean a defendant can never ask about a
witness’s prior probation. For this reason, we consider whether
Gray had such a right under the facts of this case.
¶ 54 Nothing in the record suggests that Canciamilla considered his
probationary status when he spoke with the officers. Moreover, the
record does not show how soon after the incident Canciamilla
satisfied the terms of his probation. If Canciamilla had completed
his probation shortly after the incident, the prosecutors would have
had no power to reward or punish him when they first reviewed his
witness statement. Even if Gray had a constitutional right to
cross-examine Canciamilla regarding his probationary status,
defense counsel did not show that, at some point following
Canciamilla’s statements to the officers, the prosecutors were
25 authorized to ask the court to revoke his probation. See Margerum,
¶ 12, 454 P.3d at 240 (noting that the “witness’s ability to remain
on probation is potentially in jeopardy and the threat of probation
revocation — whether real or merely perceived — creates an
incentive for a witness to try to curry favor with the prosecution who
can seek the revocation of that witness’s probation”) (emphasis
added).
¶ 55 Moreover, following the attorneys’ colloquy with the court
regarding Margerum, neither the prosecutor nor defense counsel
asked Canciamilla — or any other witness — what Canciamilla told
the investigating officers. Defense counsel’s cross-examinations of
Canciamilla and Nicholas Romito, the only one of the responding
officers who testified during the prosecution’s case, focused on the
injuries Canciamilla reported to the officers.
¶ 56 Further, as the court noted, disclosing Canciamilla’s former
probationary status to the jury would have created a risk that the
jury would improperly hold the misdemeanor conviction against
him in weighing his credibility. See Banek v. Thomas, 697 P.2d
743, 745 (Colo. App. 1984) (“Generally, credibility may not be
impeached by evidence of prior misdemeanor convictions.”), aff’d,
26 733 P.2d 1171 (Colo. 1986). Gray does not contend that she had
the right to cross-examine Canciamilla regarding his prior
misdemeanor conviction to avoid misleading the jury. See People v.
Mejia, 534 P.2d 779, 780 (Colo. 1975) (holding that the trial court
properly allowed cross-examination of a witness regarding his
earlier arrest for misdemeanor possession of marijuana after the
witness testified on direct examination that, “except for
drunkenness, he had never been arrested”).
¶ 57 The court possessed “wide latitude, insofar as the
Confrontation Clause is concerned, to place reasonable limits on
cross-examination based on concerns about, for example, . . .
prejudice, confusion of the issues, . . . or interrogation which is
repetitive or only marginally relevant.” Merritt, 842 P.2d at 166.
The court placed such limits on the defense’s cross-examination of
Canciamilla, but it did not preclude defense counsel from asking
him about inconsistencies between his statements to the police
officers and his trial testimony or about his intoxication at the time
of the incident. We cannot say that the court erred by barring
Gray’s attorney from bringing Canciamilla’s misdemeanor
27 conviction to the jury’s attention to avoid the risk that the jury
would discount Canciamilla’s testimony because of that conviction.
¶ 58 Accordingly, we hold that the trial court did not err by
declining to allow defense counsel to cross-examine Canciamilla
regarding his probationary status when he spoke to the officers
about the incident.
III. Disposition
¶ 59 The judgment is affirmed.
JUDGE JOHNSON and JUDGE MOULTRIE concur.