People v. Thompson
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Opinion
COLORADO COURT OF APPEALS 2017COA56
Court of Appeals No. 09CA2784 Arapahoe County District Court No. 07CR1483 Honorable Valeria N. Spencer, Judge Honorable William B. Sylvester, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Aaron Duane Thompson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE BERNARD Webb, J., concurs in part and specially concurs in part Dunn, J., concurs in part and dissents in part
Announced May 4, 2017
Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Keyonyu X. O’Connell, Alternate Defense Counsel, Denver, Colorado; Lynn C. Hartfield, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 This appeal poses a question of first impression in Colorado:
Do indigent defendants in criminal cases have (1) a constitutional
right to be represented by private counsel who are willing to
represent them without cost; and simultaneously (2) a
constitutional right to receive state-funded ancillary services, such
as investigators and experts? Defendant asserts that the trial court
denied his Sixth Amendment right to the counsel of his choice when
it decided that an attorney who offered to represent him without
pay would not be entitled to receive state funds to obtain ancillary
services. The court, instead, appointed the public defenders.
¶2 This question is hard enough to answer because it requires
plotting the intersection of cases that discuss the right to counsel of
choice with cases that discuss an indigent defendant’s right to
obtain state-funded ancillary services. But the question becomes
harder to answer because we must also consider whether a
Colorado Supreme Court case that describes what happens at that
intersection is contrary to cases that the United States Supreme
Court has decided. And finding an answer becomes harder still
because we must also evaluate what effect a Chief Justice Directive
had on the intersection.
1 ¶3 It is a testament to the complexity of this question that the
three judges who sat on this case found three different ways to
answer it. Two of us answer the question differently, but we both
believe that the answer leads us to affirm defendant’s conviction.
The remaining judge provides a third answer, and she would
reverse the conviction.
¶4 A grand jury indicted defendant, Aaron Duane Thompson, for
numerous charges related to the disappearance and presumed
death of his six-year-old daughter, A.T. The prosecution also
charged defendant with multiple instances of having physically
abused every other child who lived in his home.
¶5 At the end of his trial, the jury convicted him of most of the
charges. He appeals. We affirm.
I. Background
¶6 Defendant lived with: his girlfriend, Shely Lowe; her five
children, K.S., T.L., A.L., E.W.J., and K.W.; his two children, A.T.J.
and A.T.; and her half-brother, R.R. In November 2005, defendant
called the police to report that A.T. had run away from home after
an argument over a cookie. The police initiated an extensive search
for A.T. that proved to be fruitless.
2 ¶7 During the investigation, officers spoke with Eric Williams, Sr.,
Ms. Lowe’s ex-boyfriend and the father of two of her children. He
told the police that, about a year before defendant had reported A.T.
missing, Ms. Lowe told him that A.T. had suddenly died one evening
in the bathtub. Ms. Lowe told Mr. Williams that she and defendant
had buried the child “far away.”
¶8 The police also spoke with Ms. Lowe’s close friend, Tabitha
Graves. Ms. Graves described a conversation with Ms. Lowe
approximately one year before defendant reported A.T. missing in
which Ms. Lowe said that she had found A.T. dead in the child’s bed
one morning. Ms. Lowe explained that defendant had removed the
child’s body from their home and that they were trying to concoct a
plan to cover up A.T.’s death.
¶9 Officers then questioned the other children in the household.
They initially told similar stories that went as follows: They had
seen A.T. at home earlier on the day that she ran away. They
parroted various details about A.T., including her favorite food, her
favorite color, and her most recent Halloween costume.
3 ¶ 10 But the officers’ questioning turned up more than mundane
details. For example, the children said that defendant and Ms.
Lowe disciplined them with “whoopins.”
¶ 11 The officers contacted social services, and case workers placed
the children with foster families. Once they were in different
environments, the children gradually began to disclose details
about physical abuse that they had endured. They explained that
A.T. had not been in the home for some time before defendant
reported her missing — evidence at trial indicated that the girl may
have been gone for as long as two years — and that defendant and
Ms. Lowe had told them to lie to the police about A.T.
¶ 12 A grand jury indicted defendant on sixty charges, including
child abuse resulting in death, false reporting, abuse of a corpse,
assault, contributing to the delinquency of a minor, child abuse,
conspiracy, and accessory. (The grand jury did not indict Ms. Lowe
because she had died of natural causes during the investigation.)
¶ 13 The trial jury convicted defendant of most of the charges,
including child abuse resulting in death, child abuse, assault, false
reporting, concealing the child’s death, contributing to the
delinquency of a minor, and conspiracy.
4 ¶ 14 The trial court sentenced defendant to a twelve-year jail
sentence, to be followed by 102 years in prison.
II. The Trial Court Did Not Violate Defendant’s Sixth Amendment Right to Counsel of Choice
A. Background
¶ 15 Shortly after the grand jury indicted him, defendant appeared
before the trial court with an attorney, David Lane. Mr. Lane said
that he had represented defendant for “about two years” as
“retained counsel.” But defendant was indigent, and Mr. Lane
thought that he would “qualify for court-appointed counsel.” Mr.
Lane made clear that he was “willing to continue” to represent
defendant as “retained counsel.” Although defendant wanted Mr.
Lane “to represent him,” he could not pay for ancillary services,
such as “an investigator” or “various experts in various fields.” Mr.
Lane added that the Constitution obligated the trial court to provide
such ancillary services to indigent defendants at state expense.
¶ 16 Mr. Lane asserted that defendant was being forced to choose
between two constitutional rights: the right to counsel of choice and
the right to receive ancillary services at state expense. He said that
a Colorado Supreme Court case, People v. Cardenas, 62 P.3d 621
5 (Colo. 2002), had forced defendant into making this choice, and
that this Colorado case clashed with a more recent United States
Supreme Court case, United States v. Gonzalez-Lopez, 548 U.S. 140
(2006). Mr. Lane then said that the court should allow him to
continue to represent defendant and that it should also agree to pay
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COLORADO COURT OF APPEALS 2017COA56
Court of Appeals No. 09CA2784 Arapahoe County District Court No. 07CR1483 Honorable Valeria N. Spencer, Judge Honorable William B. Sylvester, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Aaron Duane Thompson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE BERNARD Webb, J., concurs in part and specially concurs in part Dunn, J., concurs in part and dissents in part
Announced May 4, 2017
Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Keyonyu X. O’Connell, Alternate Defense Counsel, Denver, Colorado; Lynn C. Hartfield, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 This appeal poses a question of first impression in Colorado:
Do indigent defendants in criminal cases have (1) a constitutional
right to be represented by private counsel who are willing to
represent them without cost; and simultaneously (2) a
constitutional right to receive state-funded ancillary services, such
as investigators and experts? Defendant asserts that the trial court
denied his Sixth Amendment right to the counsel of his choice when
it decided that an attorney who offered to represent him without
pay would not be entitled to receive state funds to obtain ancillary
services. The court, instead, appointed the public defenders.
¶2 This question is hard enough to answer because it requires
plotting the intersection of cases that discuss the right to counsel of
choice with cases that discuss an indigent defendant’s right to
obtain state-funded ancillary services. But the question becomes
harder to answer because we must also consider whether a
Colorado Supreme Court case that describes what happens at that
intersection is contrary to cases that the United States Supreme
Court has decided. And finding an answer becomes harder still
because we must also evaluate what effect a Chief Justice Directive
had on the intersection.
1 ¶3 It is a testament to the complexity of this question that the
three judges who sat on this case found three different ways to
answer it. Two of us answer the question differently, but we both
believe that the answer leads us to affirm defendant’s conviction.
The remaining judge provides a third answer, and she would
reverse the conviction.
¶4 A grand jury indicted defendant, Aaron Duane Thompson, for
numerous charges related to the disappearance and presumed
death of his six-year-old daughter, A.T. The prosecution also
charged defendant with multiple instances of having physically
abused every other child who lived in his home.
¶5 At the end of his trial, the jury convicted him of most of the
charges. He appeals. We affirm.
I. Background
¶6 Defendant lived with: his girlfriend, Shely Lowe; her five
children, K.S., T.L., A.L., E.W.J., and K.W.; his two children, A.T.J.
and A.T.; and her half-brother, R.R. In November 2005, defendant
called the police to report that A.T. had run away from home after
an argument over a cookie. The police initiated an extensive search
for A.T. that proved to be fruitless.
2 ¶7 During the investigation, officers spoke with Eric Williams, Sr.,
Ms. Lowe’s ex-boyfriend and the father of two of her children. He
told the police that, about a year before defendant had reported A.T.
missing, Ms. Lowe told him that A.T. had suddenly died one evening
in the bathtub. Ms. Lowe told Mr. Williams that she and defendant
had buried the child “far away.”
¶8 The police also spoke with Ms. Lowe’s close friend, Tabitha
Graves. Ms. Graves described a conversation with Ms. Lowe
approximately one year before defendant reported A.T. missing in
which Ms. Lowe said that she had found A.T. dead in the child’s bed
one morning. Ms. Lowe explained that defendant had removed the
child’s body from their home and that they were trying to concoct a
plan to cover up A.T.’s death.
¶9 Officers then questioned the other children in the household.
They initially told similar stories that went as follows: They had
seen A.T. at home earlier on the day that she ran away. They
parroted various details about A.T., including her favorite food, her
favorite color, and her most recent Halloween costume.
3 ¶ 10 But the officers’ questioning turned up more than mundane
details. For example, the children said that defendant and Ms.
Lowe disciplined them with “whoopins.”
¶ 11 The officers contacted social services, and case workers placed
the children with foster families. Once they were in different
environments, the children gradually began to disclose details
about physical abuse that they had endured. They explained that
A.T. had not been in the home for some time before defendant
reported her missing — evidence at trial indicated that the girl may
have been gone for as long as two years — and that defendant and
Ms. Lowe had told them to lie to the police about A.T.
¶ 12 A grand jury indicted defendant on sixty charges, including
child abuse resulting in death, false reporting, abuse of a corpse,
assault, contributing to the delinquency of a minor, child abuse,
conspiracy, and accessory. (The grand jury did not indict Ms. Lowe
because she had died of natural causes during the investigation.)
¶ 13 The trial jury convicted defendant of most of the charges,
including child abuse resulting in death, child abuse, assault, false
reporting, concealing the child’s death, contributing to the
delinquency of a minor, and conspiracy.
4 ¶ 14 The trial court sentenced defendant to a twelve-year jail
sentence, to be followed by 102 years in prison.
II. The Trial Court Did Not Violate Defendant’s Sixth Amendment Right to Counsel of Choice
A. Background
¶ 15 Shortly after the grand jury indicted him, defendant appeared
before the trial court with an attorney, David Lane. Mr. Lane said
that he had represented defendant for “about two years” as
“retained counsel.” But defendant was indigent, and Mr. Lane
thought that he would “qualify for court-appointed counsel.” Mr.
Lane made clear that he was “willing to continue” to represent
defendant as “retained counsel.” Although defendant wanted Mr.
Lane “to represent him,” he could not pay for ancillary services,
such as “an investigator” or “various experts in various fields.” Mr.
Lane added that the Constitution obligated the trial court to provide
such ancillary services to indigent defendants at state expense.
¶ 16 Mr. Lane asserted that defendant was being forced to choose
between two constitutional rights: the right to counsel of choice and
the right to receive ancillary services at state expense. He said that
a Colorado Supreme Court case, People v. Cardenas, 62 P.3d 621
5 (Colo. 2002), had forced defendant into making this choice, and
that this Colorado case clashed with a more recent United States
Supreme Court case, United States v. Gonzalez-Lopez, 548 U.S. 140
(2006). Mr. Lane then said that the court should allow him to
continue to represent defendant and that it should also agree to pay
state funds for any ancillary services that defendant might require.
¶ 17 The trial court declined Mr. Lane’s invitation to “overrule”
Cardenas. Mr. Lane then said that defendant could not get a fair
trial without ancillary services. So, he was therefore forced to “step
aside” and to ask the court to appoint the public defenders to
represent defendant. He registered defendant’s objection to his
being forced to leave the case, citing the Sixth Amendment, the
Fourteenth Amendment, and “analogous provisions of the Colorado
Constitution.”
¶ 18 The trial court promptly appointed the public defenders as
defendant’s attorneys, and Mr. Lane’s connection with this case
ended.
B. Defendant’s Contentions
¶ 19 Defendant contends that the trial court denied him his Sixth
Amendment right to his counsel of choice. It did so when it decided
6 that it would not end-run Cardenas and authorize Mr. Lane, acting
as defendant’s retained counsel, to receive state-funded ancillary
services in the course of representing defendant.
¶ 20 As far as this issue is concerned, we find ourselves at an
unusual divide for a three-judge panel. Judge Webb “take[s] no
position” on the analysis that the reader is about to encounter, but
he concurs with the decision to affirm defendant’s convictions.
Judge Dunn dissents from this part of the opinion.
¶ 21 After examining the constitutional issues that were preserved
in the trial court and have been addressed by defendant and the
prosecution on appeal, I conclude that (1) the court did not abridge
defendant’s constitutional right to counsel of choice; and (2) any
error that the court may have committed was harmless when, in the
absence of a request from Mr. Lane, it did not sua sponte apply a
Chief Justice Directive that addressed when a court could provide
state-funded ancillary services to indigent defendants who were
represented by pro bono counsel.
C. Right to Counsel of Choice
¶ 22 Defendant’s appellate contentions proceed in three steps.
Although he cites a variety of authority in support of all three steps,
7 one or two United States Supreme Court cases form the foundation
for each one.
¶ 23 The first step asserts that defendant had “a right to continued
representation” by Mr. Lane. This step relies on cases such as
Gonzalez-Lopez, 548 U.S. at 140, and Caplin & Drysdale, Chartered
v. United States, 491 U.S. 617 (1989).
¶ 24 The second step submits that the trial court violated this right
when it declined to rule on Mr. Lane’s “request for ancillary
services.” This step focuses on Ake v. Oklahoma, 470 U.S. 68
(1985).
¶ 25 The third step claims that, by requiring defendant to be
represented by the public defender in order to obtain those ancillary
services, the trial court improperly placed defendant on the horns of
a constitutional dilemma: It forced him to choose between his right
to be represented by Mr. Lane, his counsel of choice, and his right
to present his defense, via the ancillary services that Mr. Lane
sought. This step is based on Simmons v. United States, 390 U.S.
377 (1968).
¶ 26 As I will explain below, these United States Supreme Court
decisions do not support defendant’s three-step analysis. I instead
8 think that the Supreme Court has limited the constitutional right to
counsel of choice and the constitutional right to obtain ancillary
services at state expense in a way that knits those rights together:
Indigent defendants do not have a constitutional right to use state
funds to pay for attorneys or for ancillary services of their choosing.
¶ 27 Cardenas faithfully implemented this shared limitation by
requiring that defendants who require state-funded ancillary
services be represented by public defenders. Applying Cardenas, I
conclude that defendant only had a right to state-funded ancillary
services if the public defender or court-appointed alternate defense
counsel represented him. I further conclude that the trial court did
not wrongfully deny defendant’s constitutional right to counsel of
choice when it declined Mr. Lane’s invitation to depart from
Cardenas.
¶ 28 To be sure, Chief Justice Directive 04-04, Appointment of
State-Funded Counsel in Criminal Cases and for Contempt of
Court, § V(D) (amended Nov. 2014)(formerly § IV(D)), would have
allowed the trial court to pay for support services for a defendant
who is represented by private counsel. The trial court did not
consider the Directive when it decided to appoint the public
9 defenders. And Mr. Lane did not ask the court to do so. Be that as
it may, I conclude that any error that the court may have made
when it did not consider the Directive was harmless.
¶ 29 I begin my analysis by explaining Cardenas.
1. Cardenas
¶ 30 A pro bono attorney represented the indigent defendant in
Cardenas. 62 P.3d at 622. The attorney asked the trial court to
appoint, at state expense, an interpreter to help her talk with the
defendant, who did not speak English, in order to investigate the
circumstances surrounding his guilty plea. Id. The court declined.
¶ 31 Our supreme court upheld the trial court’s decision. The
court first observed that, although “an indigent defendant has the
right to legal representation and supporting services at state
expense, he does not have the right to pick the attorney of his
choice.” Id. at 623.
¶ 32 The court next concluded that, if the defendant had wanted
“the state to pay the costs of his attorney and supporting services,
his only choice is to be represented by the public defender, or in the
case of a conflict, a state-appointed alternate defense counsel.” Id.
The court supported this conclusion by analyzing several statutes
10 governing the office of the state public defender. See id. at 622-23.
Its analysis yielded the conclusion that the legislature had
established such a requirement. See id.
¶ 33 Last, the court observed that, although the defendant had the
“right to be represented by” the pro bono attorney, “the state [was]
not obliged to pay the costs of that representation.” Id. at 623.
¶ 34 I now turn to explaining why I think that the United States
Supreme Court cases upon which defendant relies have expressed a
shared limitation on the right to counsel of choice and on the right
to ancillary services that supports — rather than undercuts —
Cardenas. The first stop on that road is to discuss the right to
counsel of choice.
2. Gonzalez-Lopez and Caplin & Drysdale
¶ 35 The right to counsel of one’s choice is “circumscribed in
several important respects.” Wheat v. United States, 486 U.S. 153,
159 (1988). The “important respect[]” that circumscribes the right
in this case is that “a defendant may not insist on representation by
an attorney he cannot afford . . . .” Id. In other words, “the right to
counsel of choice does not extend to defendants who require
counsel to be appointed for them.” Gonzalez-Lopez, 548 U.S. at
11 151; accord People v. Coria, 937 P.2d 386, 389 (Colo. 1997)(An
indigent defendant has a constitutional right to counsel in a
criminal case, “but not an absolute right to demand a particular
attorney.”).
¶ 36 But, once a court violates a defendant’s right to counsel of
choice, that error is not subject to harmless error analysis.
Gonzalez-Lopez, 548 U.S. at 148-50, 152; accord Anaya v. People,
764 P.2d 779, 782-83 (Colo. 1988).
¶ 37 Turning to this case, it is true that the United States Supreme
Court has, at least twice, said that “the Sixth Amendment
guarantees a defendant the right to be represented by an otherwise
qualified attorney whom that defendant can afford to hire, or who is
willing to represent the defendant even though he is without funds.”
Gonzalez-Lopez, 548 U.S. at 144 (quoting Caplin & Drysdale, 491
U.S. at 624-25).
¶ 38 But this truth is limited in a very important way. Neither
Gonzalez-Lopez nor Caplin & Drysdale cited Ake, a case that I
examine in more detail below. And neither case discussed whether
an indigent defendant who had an attorney willing to represent him
12 at no cost also had the right to require the state to pay for ancillary
services.
¶ 39 Caplin & Drysdale gives us a tantalizingly strong hint of how
the Supreme Court would decide that issue: “Whatever the full
extent of the Sixth Amendment’s protection of one’s right to retain
counsel of his choosing, that protection does not go beyond ‘the
individual’s right to spend his own money to obtain the advice and
assistance of . . . counsel.’” 491 U.S. at 626 (emphasis
added)(quoting Walters v. Nat’l Ass’n of Radiation Survivors, 473
U.S. 305, 370 (1985)(Stevens, J., dissenting)). Indeed, “[a]
defendant has no Sixth Amendment right to spend another person’s
money for services rendered by an attorney, even if those funds are
the only way that that defendant will be able to retain the attorney
of his choice.” Id. (emphasis added).
¶ 40 I read this language from Caplin & Drysdale to mean that,
although defendants’ Sixth Amendment right to counsel of choice
includes attorneys who are willing to represent them even though
the defendants lack funds, Gonzalez-Lopez, 548 U.S. at 145, the
right does not extend to indigent defendants who require courts to
spend public funds to pay for their ancillary services.
13 ¶ 41 The next stop in my reasoning is to discuss the right to
ancillary services, which supports my reading of the language from
Caplin & Drysdale.
3. Ake
¶ 42 Ake held that, if an indigent defendant “demonstrates . . . that
his sanity at the time of the offense is to be a significant factor at
trial,” then the state must, “at a minimum, assure the defendant
access to a competent psychiatrist,” who could “conduct an
appropriate examination and assist in evaluation, preparation, and
presentation of the defense.” 470 U.S. at 83. The Supreme Court
qualified this holding in two important ways.
¶ 43 First, it made clear that an indigent defendant did not have a
constitutional right “to receive [state] funds to hire his own”
psychiatrist. Id. (emphasis added). This qualification supports my
reading of Caplin & Drysdale, and it therefore cuts defendant’s
contention to the bone.
¶ 44 Second, it ceded “the decision on how to implement this right”
to the states. Id. And Cardenas is Colorado’s implementation of
the right.
14 ¶ 45 Relying partly on Ake, our supreme court observed that the
“Fourteenth Amendment . . . imposes upon the state the obligation
to provide an indigent defendant with those basic instruments and
services essential to his or her right to adequately defend against a
criminal charge.” People v. Nord, 790 P.2d 311, 315 (Colo. 1990).
¶ 46 I must now take a detour to explain why Simmons, the
foundation for the third step in defendant’s contention, does not
bear the weight that he puts on it.
4. Simmons
¶ 47 Defendant relies on Simmons for the proposition that it is
“intolerable that one constitutional right should have to be
surrendered in order to assert another.” 390 U.S. at 394. But
Simmons, too, has been qualified.
¶ 48 First, the Simmons Court limited the scope of its decision by
immediately preceding the language quoted above with the
statement “[i]n these circumstances.” Id. The circumstances were
as follows: The defendant in Simmons had to testify in support of
his Fourth Amendment motion to suppress evidence to establish
that he had standing, but the prosecution could then use this
testimony against him in any subsequent trial. See id. at 391-93.
15 Of course, this situation created a Sophie’s Choice: If the defendant
did not want the prosecution to use his motions hearing testimony
at trial, he would have to give up his Fourth Amendment right to
challenge the search; if he wanted to establish that he had standing
for purposes of his Fourth Amendment motion, he had to give up
his Fifth Amendment right for the purposes of his trial. Id. at 391,
393-94.
¶ 49 Second, the Supreme Court has not extended Simmons very
far in criminal cases. See United States v. Kahan, 415 U.S. 239,
242-43 (1974)(Supreme Court reserved ruling on whether it should
extend Simmons to Sixth Amendment claims for appointed counsel);
United States v. Gravatt, 868 F.2d 585, 590 n.9 (3d Cir.
1989)(same); see also United States v. Snipes, 611 F.3d 855, 866
(11th Cir. 2010)(“Simmons has never been extended beyond its
context.”); United States v. Taylor, 975 F.2d 402, 404 (7th Cir.
1992)(“Efforts to extend the scope of Simmons have not fared well.”);
In re Fed. Grand Jury Procedures (FGJ 91-9), Cohen, 975 F.2d 1488,
1493 (11th Cir. 1992)(“Given the narrow reading the Supreme
Court has given” Simmons, “we decline to read Simmons” more
broadly.).
16 ¶ 50 (Our supreme court has only relied on this part of Simmons —
a separate part discusses photographic identification procedures —
in cases involving the testimony of a defendant or of a defendant’s
expert. See, e.g., Perez v. People, 745 P.2d 650, 653 (Colo. 1987);
People v. Chavez, 621 P.2d 1362, 1365 (Colo. 1981).)
¶ 51 Third, I submit that it is, at the very least, unclear whether
Simmons is still viable in this regard, and, if so, how far its reach
extends. Just three years after deciding Simmons, the Supreme
Court explained in McGautha v. California, 402 U.S. 183, 212-13
(1971), vacated in part on other grounds sub nom. Crampton v. Ohio,
408 U.S. 941 (1972), that, “to the extent that [Simmons’] rationale
was based on a ‘tension’ between constitutional rights and the
policies behind them, the validity of that reasoning must now be
regarded as open to question . . . .” This rationale was “open to
question” because “[t]he criminal process . . . is replete with
situations requiring ‘the making of difficult judgments’ as to which
course to follow.” Id. at 213 (quoting McMann v. Richardson, 397
U.S. 759, 769 (1970)).
¶ 52 Simply put, even if a defendant has a constitutional right “to
follow whichever course he chooses, the Constitution does not by
17 that token always forbid requiring him to choose.” Id. “The
threshold question is,” instead, “whether compelling the election
impairs to an appreciable extent any of the policies behind the
rights involved.” Id.; see also Corbitt v. New Jersey, 439 U.S. 212,
219 n.8 (1978)(citing McGautha with approval); Chaffin v.
Stynchcombe, 412 U.S. 17, 30 (1973)(The Constitution does not
forbid “every government-imposed choice in the criminal process
that has the effect of discouraging the exercise of constitutional
rights.”).
¶ 53 Given all of this, “[a]lthough Simmons has not been overruled,
the Supreme Court . . . questioned its logic” in McGautha. United
States v. Rosalez, 711 F.3d 1194, 1214 n.6 (10th Cir. 2013). And
more recent cases have recognized that defendants in criminal
cases will sometimes have to make hard choices concerning
constitutional rights.
¶ 54 But must I conclude that the premise underlying Simmons is
unsound to conclude that Simmons does not apply this case? No,
because the premise itself does not apply. It rested on the tension
between the defendant’s Fourth and Fifth Amendment rights based
on potentially incriminating uses of his suppression hearing
18 testimony at trial. See Simmons, 390 U.S. at 393-94. By its own
terms, Simmons limited its reach to “these circumstances.” Id. at
394. This case pivots on the Sixth Amendment instead of on the
Fourth and Fifth Amendments, and it does not involve a potentially
prejudicial use of a defendant’s testimony.
¶ 55 Neither the United States Supreme Court nor our supreme
court has subsequently stretched Simmons beyond those
testimonial circumstances to situations such as those we face in
this case. I would decline defendant’s invitation to do so. See
Snipes, 611 F.3d at 866.
¶ 56 But, even if I were to think that Simmons applied to this case, I
do not believe that defendant faced an “intolerable” choice of
surrendering one constitutional right to assert another. See
Simmons, 390 U.S. at 394. According to Ake, defendant did not
have “a constitutional right . . . to receive funds to hire his own”
experts. 470 U.S. at 83. So defendant was never faced with a
choice between two constitutional rights. And, as McGautha made
clear, “[t]he criminal process . . . is replete with situations requiring
‘the making of difficult judgments’ as to which course to follow,” so
Simmons’ “rationale [that] was based on a ‘tension’ between
19 constitutional rights and the policies behind them . . . must now be
regarded as open to question . . . .” McGautha, 402 U.S. at 212-13.
¶ 57 Yes, defendant may have faced a choice between
representation by Mr. Lane without any state-funded ancillary
services and representation by the public defenders’ office with
such services. But I do not think that choice was intolerable or
unfair. See id.; see also Chaffin, 412 U.S. at 30. And the choice did
not impair the policies behind defendant’s right to counsel of choice
and his right to obtain ancillary services, see McGautha, 402 U.S. at
212-13, because (1) he did not have a Sixth Amendment right to
spend another person’s — or the state’s — money to obtain
ancillary services, see Caplin & Drysdale, 491 U.S. at 626; and
(2) he did not have “a constitutional right . . . to receive funds to
hire his own [experts],” Ake, 470 U.S. at 83.
¶ 58 As I recognized above, the United States Supreme Court cases
upon which defendant relies have not discussed the right to counsel
of choice and the right to ancillary services together. But some
other courts have done so. Let us take a look at them.
20 5. Cases From Other Jurisdictions
a. Cases That Support My Analysis
¶ 59 Much like our supreme court in Cardenas, the Maryland
Court of Appeals, that state’s highest court, held that the public
defenders’ services, including access to ancillary services, were not
severable. Indigent defendants were required to accept them as a
“package” or forgo them completely. Moore v. State, 889 A.2d 325,
345-46 (Md. 2005). This arrangement did not violate the
defendants’ constitutional rights to counsel or to obtain ancillary
services. Id. at 346.
¶ 60 In an earlier case, applying similar reasoning, the Maryland
Court of Appeals concluded that an indigent defendant who was
represented by a pro bono attorney was not entitled to a transcript
at state expense because the public defender had not represented
him. State v. Miller, 651 A.2d 845, 853 (Md. 1994).
¶ 61 In Miller v. Smith, 115 F.3d 1136, 1143-44 (4th Cir. 1997), the
Fourth Circuit Court of Appeals held that Maryland’s requirement
that a defendant accept the public defender’s representation in
order to gain access to state-funded ancillary services had not
21 violated the defendant’s Sixth Amendment right to counsel of
choice.
¶ 62 In State v. Earl, 345 P.3d 1153, 1155 (Utah 2015), an indigent
defendant, who was represented by private counsel, filed a motion
that asked the state to pay for ancillary services. The trial court
refused, relying on Utah’s statutes governing publicly funded
counsel for indigents. Id. Those statutes, much like Colorado’s,
“generally condition[ed] an indigent defendant’s eligibility for
[ancillary services] on the retention of publicly funded counsel.” Id.
¶ 63 On appeal, the defendant cited Ake and contended that her
ability to obtain state-funded ancillary services should not be
conditioned on a “public[ly] appointed lawyer.” Id. at 1158. The
Utah Supreme Court disagreed.
The constitutional right to counsel encompasses the prerogative of choosing counsel of one’s choice and of receiving resources necessary to an adequate defense. Such rights are qualified ones, however, affected by the “avenues which [the defendant] chose not to follow as well as those [she] now seeks to widen.” When a defendant elects an avenue that steers away from the public representation provided by the government, she has received the private counsel of her choice and has no constitutional right to
22 defense resources from a secondary source backed by government funding.
Id. (emphasis added)(citations omitted). The court later added that
“[a] defendant who opts out of public representation has also opted
out of public defense resources, and nothing in the Constitution
requires a different result.” Id. at 1159.
¶ 64 I am persuaded by these cases because they incorporate the
two qualifications that Ake placed on the right to obtain a
state-funded psychiatrist. The courts in the Maryland and Utah
cases specifically recognized these qualifications, and they relied on
them in their opinions.
In Moore, the Maryland Court of Appeals observed that,
“while a State might provide funds enabling indigent
defendants with retained counsel to hire experts of their
own choosing, Ake does not require this approach.”
Moore, 889 A.2d at 343 (emphasis added).
The Utah Supreme Court noted that “[t]he United States
Supreme Court . . . has not prescribed a single orthodoxy
for the provision of the defense resources required by the
Sixth Amendment.” Earl, 345 P.3d at 1158. Utah’s
23 legislature, like Colorado’s, “has chosen to couple the
availability of defense resources with the retention of
government-funded counsel.” Id. As a result, an
indigent defendant in Utah, like an indigent defendant in
Colorado, “has every right to decline the counsel the
government offers in favor of the one she prefers, but in
so doing, she loses the right to a publicly funded
defense.” Id.
b. Cases That Support Defendant’s Analysis
¶ 65 State v. Brown, 134 P.3d 753, 759 (N.M. 2006), held that
(1) “an indigent defendant represented by pro bono counsel[] is
entitled both to the constitutional right to counsel and the
constitutional right to be provided with the basic tools of an
adequate defense”; and so (2) “indigent defendants represented by
pro bono, contract, or [state public defender] counsel should have
equal access to expert witness funding, provided that the expert
witness meets all of the standards promulgated by” the state public
defender.
¶ 66 The defendant in State v. Wang, 92 A.3d 220, 226 (Conn.
2014), represented himself. The Connecticut Supreme Court
24 concluded that “due process . . . requires the state to provide an
indigent self-represented criminal defendant with expert or
investigative assistance when he makes a threshold showing that
such assistance is reasonably necessary for” his defense. Id.
¶ 67 I am not persuaded by these two cases for a couple of reasons.
¶ 68 First, Brown did not discuss the two qualifications that Ake
placed on the exercise of the right to state-funded psychiatric
assistance. Wang called them “dicta.” 92 A.3d at 232 n.19. That
may or may not be accurate.
¶ 69 The first sentence in the paragraph where the two
qualifications appear — and that created the right to ancillary
services — begins with the phrase, “[w]e therefore hold . . . .” Ake,
470 U.S. at 83. The qualifications appear in the sentence
immediately after the first one, and it begins with the phrase, “[t]his
is not to say . . . .” Id. This cheek-by-jowl juxtaposition of a right
and the limitations on that right looks like a holding to me. And I
think that we ignore the Supreme Court’s entire holding —
including the limitations on that holding — at our peril.
¶ 70 Second, both Brown and Wang relied on Simmons. See Wang,
92 A.3d at 231; Brown, 134 P.3d at 756. Wang placed a judicial
25 gloss on Ake by interpreting it to “reasonably limit the right to
expert assistance, . . . not to permit a state to impose a choice
between two constitutional rights that are not mutually exclusive.”
92 A.3d at 232 n.19. As I have explained above, I do not think that
Simmons supports such a conclusion for a variety of reasons.
¶ 71 I next synthesize the conclusions that I have reached.
6. Gonzalez-Lopez & Caplin & Drysdale + Ake - Simmons = Cardenas
¶ 72 My chain of reasoning in reaching the conclusion that the trial
court did not violate defendant’s right to counsel of choice goes like
this:
Defendant was indigent, so, although he had the right to
counsel, he did not have the right to choose his counsel,
and he did not have the right to require the state to pay
for ancillary services. See Gonzalez-Lopez, 548 U.S. at
150-51; Coria, 937 P.2d at 389.
Because he was indigent, he did not have a constitutional
right “to receive [state] funds to hire his own” investigator
and experts. Ake, 470 U.S. at 83.
26 Our supreme court implemented the right to ancillary
services in Cardenas. See Ake, 470 U.S. at 83.
By following Cardenas and by appointing the public
defender to represent defendant, the trial court
implemented his right to counsel and his right to
ancillary services.
Simmons does not apply in these circumstances, but,
even if it did, it would not lead me to the conclusion that
the trial court created an intolerable tension between
defendant’s right to counsel and his right to ancillary
services. I conclude instead that the choice that
defendant faced — between Mr. Lane and the public
defenders — was one of those difficult, but constitutional,
choices that defendants sometimes face in the criminal
justice system. See Chaffin, 412 U.S. at 30; McGautha,
402 U.S. at 213.
The court therefore did not wrongfully deny defendant his
right to counsel of choice when it declined Mr. Lane’s
request to continue to represent him, conditioned on the
state’s payment for an investigator and various experts.
27 And, because defendant’s right to counsel of choice was
not wrongfully denied, we are not automatically required
to reverse his conviction. Contra Gonzalez-Lopez, 548
U.S. at 148, 152; Anaya, 764 P.2d at 782-83.
¶ 73 But, as defendant points out, the trial court did not follow the
Chief Justice Directive. What should we do about that?
D. The Chief Justice Directive
¶ 74 “Chief Justice Directives represent an expression of Judicial
Department policy, to be given full force and effect in matters of
court administration.” People v. Orozco, 210 P.3d 472, 475 (Colo.
App. 2009). If the trial court had applied the Directive, it could have
authorized state funds to pay for ancillary services for defendant
while Mr. Lane continued to represent him. (I do not address the
issue, discussed in Judge Webb’s special concurrence, of whether
the Directive violates the separation of powers doctrine. The parties
did not raise it in the trial court or on appeal. See Moody v. People,
159 P.3d 611, 614-17 (Colo. 2007).)
¶ 75 Based on my preceding analysis, however, I do not think that
the trial court erred by implementing Cardenas and appointing the
public defender to represent defendant. But, even if the court had
28 erred when it did not consider CJD 04-04 section V(D), that same
analysis shows that this error was not of constitutional dimension.
¶ 76 Everyone before us agrees that Mr. Lane did not even mention
the Directive to the trial court. See Hagos v. People, 2012 CO 63,
¶ 14 (appellate courts review unpreserved nonconstitutional errors
for plain error). Still, as Judge Dunn observes, an attorney
probably should not have to direct a court’s attention to a Chief
Justice Directive. But, in the end, we will reverse a conviction
because of an unpreserved nonconstitutional error only if the error
affected the defendant’s substantial rights. Crim. P. 52(b). To have
this effect, the error must have “substantially influenced the verdict
or affected the fairness of the trial proceedings,” Tevlin v. People,
715 P.2d 338, 342 (Colo. 1986), in a manner that casts “serious
doubt” over the “reliability of the judgment of conviction,” Scott v.
People, 2017 CO 16, ¶ 15.
¶ 77 Public defenders represented defendant throughout the
proceedings. Mr. Lane obviously thought that defendant was in
good hands because he told the trial court that, “in [his] estimation,
the Colorado Public Defenders are in fact the best criminal defense
lawyers in the United States of America.” The public defenders had
29 access to the services of one or more investigators. They retained
experts to testify on defendant’s behalf. I therefore conclude that
the trial court’s putative nonconstitutional error was harmless
because it did not substantially influence the verdict or affect the
fairness of defendant’s trial.
¶ 78 In summary, defendant’s constitutional right to counsel and
his constitutional right to ancillary services were scrupulously
honored. The Constitution promised him no more than that.
III. Defendant’s Convictions for False Reporting and Conspiracy to Commit False Reporting Were Not Barred by the Statute of Limitations
¶ 79 After the prosecution rested, defendant moved for a judgment
of acquittal on the false reporting and conspiracy to commit false
reporting counts. He asserted that they were barred by the
applicable statute of limitations. After the trial court denied his
motion, the jury convicted him of both counts. He now contends
that the trial court erred. We disagree.
A. Statute of Limitations
¶ 80 We review de novo a trial court’s decision to deny a motion for
a judgment of acquittal. People v. Patton, 2016 COA 187, ¶ 7. In
doing so, we give the prosecution the benefit of every reasonable
30 inference that might fairly be drawn from the evidence, both direct
and circumstantial. People v. Valdez, 2014 COA 125, ¶ 7. We also
review de novo statute of limitations claims. People v. Johnson,
2013 COA 122, ¶ 7.
B. Legal Principles
¶ 81 A person commits false reporting when he knowingly makes a
report to law enforcement officials “pretending to furnish
information relating to an offense or other incident within [law
enforcement’s] official concern when he . . . knows that [the]
information . . . is false.” § 18-8-111(1)(c), C.R.S. 2016. And a
person is guilty of conspiracy if, with the intent to facilitate or
promote its commission, he agrees with another person to engage in
criminal conduct or aid that person in the planning or commission
of the crime. § 18-2-201(1), C.R.S. 2016.
¶ 82 The statute of limitations for the prosecution of these crimes
was eighteen months, section 16-5-401(1)(a), C.R.S. 2016, and it
generally began to run when the crime was completed, or, in other
words, when all the substantive elements of the crime had been
satisfied. People v. Thoro Prods. Co., Inc., 70 P.3d 1188, 1192 (Colo.
2003); see also Blecha v. People, 962 P.2d 931, 938 (Colo.
31 1998)(explaining that a conspiracy terminates when the objective of
the conspiracy is obtained).
C. Application
¶ 83 Defendant asserts that the crimes of false reporting and
conspiracy to commit false reporting began and ended with
defendant’s initial report to the police that A.T. was missing. This
report occurred a few days beyond the eighteen-month statute of
limitations. So defendant asserts that the statute of limitations had
run on those crimes.
¶ 84 We disagree because (1) the indictment did not charge
defendant with the initial false report; and (2) defendant made
misrepresentations to the police within the eighteen-month statute
of limitations period.
¶ 85 One of these misrepresentations that fell within the statute of
limitations occurred during a conversation that defendant had with
a police officer at a shoe store. The officer accompanied defendant
to the store so that defendant could identify a pair of shoes that he
had bought A.T. to “assist in the search” for her. Defendant pointed
out a pair of shoes that he said were the same style as the ones A.T.
had been wearing when she ran away. By identifying the shoes “to
32 assist” the officer in the search for A.T., the jury could conclude
that defendant had furnished information to the police concerning
A.T.’s disappearance that he knew was false. See People v. Blue,
253 P.3d 1273, 1278 (Colo. App. 2011)(“The crime of false reporting
penalizes those who provide untruthful information to public
officials . . . .”).
¶ 86 The evidence also supports a reasonable conclusion that
defendant had conspired with Ms. Lowe to offer the police a false
report. While one officer was with defendant at the store, another
officer was at defendant’s home with Ms. Lowe. Mr. Williams, Ms.
Lowe’s ex-boyfriend, called her because the police had asked him to
do so. (By this time, the officers already knew that Ms. Lowe had
admitted to Mr. Williams that A.T. was dead.) The officer watched
Ms. Lowe leave the room to take Mr. Williams’ call. When she
returned, “she was markedly angrier.”
¶ 87 Back at the shoe store, defendant received a couple of cell
phone calls. During these calls, the officer who was with him
noticed that he became “more and more upset.” After being in the
store for fifteen to twenty minutes, defendant demanded that the
officer take him home. Upon returning home, defendant went
33 directly inside to be with Ms. Lowe, and he asked that the officer
leave the house.
¶ 88 Viewing the reasonable inferences drawn from this evidence in
the light most favorable to the prosecution, a reasonable juror could
find that, after Ms. Lowe spoke with Mr. Williams, she thought that
the police had become suspicious of both the story that A.T. had
run away and the information that they had provided to help the
police search for her. A reasonable juror could also find that, after
receiving Mr. Williams’ call, Ms. Lowe immediately called defendant
to confer about how they should tailor their false reports.
¶ 89 We conclude that the record contains sufficient evidence to
support defendant’s convictions for false reporting and conspiracy
to commit false reporting based on conduct that had occurred
within eighteen months of when the grand jury indicted defendant
on those charges. We therefore further conclude that these two
convictions were not barred by the statute of limitations.
IV. The Trial Court Did Not Abuse Its Discretion When It Admitted Certain Evidence
¶ 90 Defendant contends that the trial court erroneously admitted
the following out-of-court statements: (1) Ms. Lowe’s statements
34 that defendant might face the death penalty; (2) Ms. Lowe’s
statements to her close friend, Ms. Graves; (3) Ms. Lowe’s
statements to Mr. Williams; and (4) the children’s statements to
various people.
A. Standard of Review
¶ 91 A trial court has considerable discretion when deciding
whether evidence is admissible at trial. People v. McFee, 2016 COA
97, ¶ 17. We will therefore only reverse a court’s decision to admit
evidence if it abused its discretion. Id. A trial court abuses its
discretion only if its decision is manifestly arbitrary, unreasonable,
unfair, or is based on a misunderstanding or misapplication of the
law. Id.
B. Ms. Lowe’s Statements About the Death Penalty
1. Additional Background
¶ 92 After Ms. Lowe told Ms. Graves that A.T. had died, Ms. Graves
recorded conversations that she had with Ms. Lowe. Ms. Lowe told
Ms. Graves that she could be subject to “five years for hiding it” and
that “this means death for [defendant].” One of Ms. Lowe’s
children, A.L., also reported that Ms. Lowe had told him not to
cooperate with the police because defendant would receive the
35 death penalty if the police found out what had actually happened to
A.T.
¶ 93 The trial court decided that Ms. Lowe’s statements to the child
A.L. were relevant (1) to prove that she exerted influence over the
child; and (2) to help explain the inconsistencies in A.L.’s
statements about A.T.’s disappearance. The court ruled that Ms.
Lowe’s statements to Ms. Graves were relevant to “show the length
[that Ms. Lowe] was willing to go” and “what she was telling others
in order to get them to do and act as she felt they should to further
the conspiracy.”
2. Legal Principles
¶ 94 Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” CRE 401. Even relevant evidence may be excluded,
however, if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury. CRE 403.
36 3. Application
¶ 95 Defendant contends that this evidence was far more
prejudicial than probative. But we conclude that the record
supports the trial court’s ruling. Ms. Lowe’s statements provided
evidence to prove defendant’s conspiracy with her to conceal A.T.’s
death. These statements explained A.L.’s false reports to the police,
which were made because defendant and Ms. Lowe told the boy to
make them.
¶ 96 We next conclude, for two reasons, that the probative value of
this evidence was not substantially outweighed by the danger of
unfair prejudice. “[O]nly prejudice that suggests a decision made
on an improper basis . . . requires exclusion of relevant evidence.”
People v. Warner, 251 P.3d 556, 563 (Colo. App. 2010). An
improper basis is “sympathy, hatred, contempt, retribution, or
horror.” People v. Dist. Court, 785 P.2d 141, 147 (Colo. 1990).
¶ 97 First, although discussion of the death penalty might invoke a
strong reaction in a juror, the court instructed the jury that the
death penalty was not an issue in this case.
37 ¶ 98 Second, the court gave the jury a limiting instruction when it
admitted the statements about the death penalty that mitigated any
prejudice. The instruction stated that
[p]ortions of [the recorded statements between Ms. Lowe and Ms. Graves and the statement that Ms. Lowe made to A.L.] may [have] reference[d] the death penalty or potential punishment. This evidence [was] offered for the limited purpose of demonstrating the intent of . . . [Ms.] Lowe [and the effect of these statements on A.L.]. These particular statements are not offered as evidence they are true. You shall not consider this for any purpose other than the limited purpose for which these portions were admitted.
¶ 99 We must presume that the jury followed this instruction, and
nothing in the record rebuts this presumption. See People v.
Thomeczek, 284 P.3d 110, 115 (Colo. App. 2011)(finding that the
trial court’s limiting instruction mitigated any prejudice resulting
from the evidence); see also People v. Marko, 2015 COA 139, ¶ 195
(“[A]bsent evidence to the contrary, we presume jurors understand
and heed jury instructions.”)(cert. granted Oct. 24, 2016). We
therefore conclude that no juror could have reasonably believed
that the death penalty was an issue in this case.
38 C. Hearsay Statements
¶ 100 Defendant contends that the trial court erred in admitting
dozens of hearsay statements made by Ms. Lowe and by the
children. We address these contentions in turn.
1. Legal Principles
¶ 101 Hearsay is an out-of-court statement that is offered as
evidence at trial to prove the truth of the matter asserted. CRE
801(c). Hearsay statements are presumptively unreliable and
generally inadmissible unless they fall within an exception. McFee,
¶ 10.
¶ 102 One such exception is if an unavailable declarant made a
statement against interest. A statement against interest is
admissible if the statement (1) had so great a tendency to expose
the declarant to criminal liability at the time it was made that a
reasonable person in the declarant’s position would have made it
only if the person believed it to be true; and (2) is supported by
corroborating circumstances that indicate its trustworthiness. CRE
804(b)(3); see People v. Beller, 2016 COA 184, ¶ 56. In determining
a statement’s trustworthiness, “the court should consider when and
where the statement was made, what prompted the statement, how
39 the statement was made, and the substance of the statement.”
People v. Jensen, 55 P.3d 135, 138 (Colo. App. 2001). The court
should also consider “the nature and character of the statement,
the relationship between the parties to the statement, the
declarant’s probable motivations for making the statement, and the
circumstances under which the statement was made.” Bernal v.
People, 44 P.3d 184, 197 (Colo. 2002).
¶ 103 Out-of-court statements may also be admissible because they
are not hearsay. As is relevant to this case, statements in this
category include those made by a co-conspirator during the course
of and in furtherance of a conspiracy. CRE 801(d)(2)(E); Blecha,
962 P.2d at 937. Such statements are admissible against all
co-conspirators. Blecha, 962 P.2d at 937. To be admissible, the
proponent of the statement must show, by a preponderance of the
evidence, that a conspiracy existed and that the statements were
made during the course of and in furtherance of the conspiracy.
People v. Faussett, 2016 COA 94M, ¶ 34. Although the contents of
the statements may be considered to satisfy this burden, evidence
must corroborate the existence of the conspiracy apart from the
statements themselves. Id.
40 ¶ 104 In addition to the evidentiary rules concerning the admission
of hearsay, out-of-court statements must also satisfy the Federal
and State Confrontation Clauses. U.S. Const. amend. VI; Colo.
Const. art. II, § 16. The Confrontation Clauses provide a criminal
defendant with the right to confront the witnesses against him; they
therefore prohibit the introduction of testimonial statements when
the declarant is unavailable to testify at trial and was not previously
subject to cross-examination. Crawford v. Washington, 541 U.S.
36, 59 (2004); see People v. Fry, 92 P.3d 970, 975-76 (Colo. 2004).
¶ 105 When a hearsay statement is nontestimonial, the Federal
Confrontation Clause is not triggered. See Michigan v. Bryant, 562
U.S. 344, 357-59 (2011). The statement, however, may still be
barred under the Colorado Confrontation Clause unless the
declarant is unavailable and the statement bears sufficient indicia
of reliability. People v. Phillips, 2012 COA 176, ¶ 84. “A statement
is reliable if it falls within a firmly rooted hearsay exception or if
there is a showing of particularized guarantees of trustworthiness.”
People v. Villano, 181 P.3d 1225, 1228 (Colo. App. 2008).
41 ¶ 106 We review the questions of whether a statement is testimonial
and whether its admission violated the defendant’s confrontation
rights de novo. Phillips, ¶ 85.
2. Ms. Lowe’s Out-of-Court Statements to Ms. Graves
a. 2004 Conversation
¶ 107 Ms. Graves described a conversation with Ms. Lowe at a park
in 2004. Ms. Lowe became emotional, and she explained that one
morning A.T. did not come down for breakfast. She said that when
she went to check on A.T., she found the girl unresponsive in her
bed.
¶ 108 According to Ms. Lowe, when defendant saw A.T.’s condition,
he told her to leave the room. Several hours later, he left the house
with A.T., and he did not come back for quite some time.
¶ 109 Ms. Lowe told Ms. Graves that she could not go to the police
because the police would take her children. She said that she had
discussed several stories with defendant to cover up A.T.’s death.
In one of these stories, defendant would claim that he had taken
A.T. to see her biological mother in Michigan, but someone had
kidnapped the girl while they were en route.
42 ¶ 110 Ms. Lowe asked Ms. Graves to come with her to find a place on
the route to Michigan that they could claim was the place where the
child had been kidnapped. Ms. Graves refused to participate.
¶ 111 At the pretrial admissibility hearing, the court heard this
testimony from Ms. Graves. It found that Ms. Lowe was
unavailable, that her statements subjected her to criminal liability
for concealing the death of A.T., and that she understood the legal
consequence of her statements. The court also determined that Ms.
Lowe’s statements were trustworthy and reliable because of the
nature and the character of the circumstances surrounding them.
Based on these findings, the court admitted the 2004 conversation
as a statement against interest. (The court alternatively admitted
the contents of the conversation as res gestae. We do not address
that part of the court’s ruling because we conclude that the
statements were admissible as statements against interest.)
¶ 112 Defendant contends that the trial court erred when it admitted
the contents of the 2004 conversation between Ms. Lowe and Ms.
Graves because the statements were not reliable. We disagree for
the following reasons.
43 ¶ 113 First, the record supports the trial court’s findings. The
statements inculpated Ms. Lowe in her conspiracy with defendant
to conceal A.T.’s death.
¶ 114 Second, Ms. Graves’ testimony about the circumstances
surrounding the conversation showed that the statements were
reliable. She stated that she and Ms. Lowe were best friends and
that they shared everything. Ms. Graves also testified that Ms.
Lowe’s demeanor was unusual, so Ms. Graves knew that something
was bothering her. When Ms. Lowe mentioned A.T.’s death, she
began crying and shaking.
¶ 115 Third, the record indicates that Ms. Lowe’s statements were
voluntary, they were reasonably detailed, they reflected her
personal knowledge of the events, and they inculpated her as well
as defendant. As the court noted, Ms. Lowe “was very careful not to
just dump [it] on . . . Mr. Thompson.”
¶ 116 And, although Ms. Lowe’s statement that A.T. had died was
not, by itself, a statement against interest, we do not think that the
court erred when it admitted it. Under CRE 804(b)(3), the court
may admit not only the precise statement against interest but also
“related, collaterally neutral statements.” People v. Newton, 966
44 P.2d 563, 578 (Colo. 1998)(“[S]evering collaterally neutral
statements from each precise self-inculpatory remark deprives the
jury of important context surrounding that self-inculpatory
remark.”).
¶ 117 Ms. Lowe’s statement that A.T. was dead was one of those
related, collaterally neutral statements. Without that statement,
Ms. Lowe’s additional comments about concealing A.T.’s death and
soliciting Ms. Graves to assist her in doing so would not have made
any sense. The statement that A.T. had died was therefore
necessary to understand the 2004 conversation. Based on the
totality of the circumstances, we conclude that the trial court did
not abuse its discretion when it admitted the contents of the
conversation as statements against Ms. Lowe’s penal interests.
¶ 118 As for the Federal Confrontation Clause, defendant concedes
that Ms. Lowe’s statements were nontestimonial. Still, he continues
by asserting that her nontestimonial statements violated the
Colorado Constitution’s Confrontation Clause because they did not
bear sufficient indicia of reliability. See Phillips, ¶ 84. But the trial
court’s finding that Ms. Lowe’s statements against interest were
supported by corroborating circumstances, in effect, “incorporate[d]
45 the [Colorado] Confrontation Clause’s requirement that a statement
bear particularized guarantees of trustworthiness.” Beller, ¶ 58.
Because the record supports the trial court’s reliability findings, we
conclude that the court’s admission of these statements did not
violate the Colorado Confrontation Clause.
b. The Recorded Statements
¶ 119 The second set of statements between Ms. Lowe and Ms.
Graves began a year after their 2004 conversation. Ms. Graves,
cooperating with the police, recorded multiple conversations she
had with Ms. Lowe. During these conversations, Ms. Lowe
repeatedly tried to dissuade Ms. Graves from talking to the police
about A.T. Ms. Lowe also expressed regret for telling Ms. Graves
about A.T.’s death. The court ruled that the recorded statements
were nontestimonial, and the court admitted them as
co-conspirator statements because they “were clearly statements in
furtherance of and during the course of the conspiracy.”
¶ 120 Defendant contends that, because the recorded statements
were obtained at the direction of the police, they were testimonial
and that their admission violated the Federal Confrontation Clause.
But statements made by a co-conspirator in furtherance of the
46 conspiracy are nontestimonial. See Villano, 181 P.3d at 1228-29;
see also United States v. Patterson, 713 F.3d 1237, 1247 (10th Cir.
2013)(“[B]ecause these statements were made in furtherance of a
conspiracy, they are nontestimonial and present no Sixth
Amendment problem.”). And the United States Supreme Court has
said that such statements are nontestimonial even if made to a
person working with, or at the direction of, the police. See Bourjaily
v. United States, 483 U.S. 171, 181-84 (1987); see also Villano, 181
P.3d at 1228-29 (holding that a co-conspirator’s statements to an
undercover police officer made during the course of and in
furtherance of the conspiracy were nontestimonial).
¶ 121 Bourjaily is instructive. The Supreme Court rejected the
defendant’s contention that the admission of a conversation
between a co-conspirator and a confidential police informant
violated the Federal Confrontation Clause. Bourjaily, 483 U.S. at
183. Although Bourjaily did not consider whether the statements
were testimonial, the Supreme Court later referenced Bourjaily as
consistent with the principle that the Sixth Amendment permits the
admission of nontestimonial statements in the absence of prior
opportunities for cross-examination. Crawford, 541 U.S. at 58; see
47 also United States v. Hendricks, 395 F.3d 173, 183-84 (3d Cir.
2005); People v. Compan, 100 P.3d 533, 537 (Colo. App. 2004),
aff’d, 121 P.3d 876 (Colo. 2005). And, contrary to defendant’s
contention, Ms. Lowe’s suspicion that Ms. Graves was cooperating
with the police does not alter the application of Bourjaily. Indeed, it
would be hard to conclude that a reasonable person in Ms. Lowe’s
position would have made incriminating statements if she had
believed that they would later be used in the investigation or
prosecution of a crime. We therefore conclude that Ms. Lowe’s
recorded statements to Ms. Graves were not testimonial.
¶ 122 The record also supports the trial court’s conclusion that the
recorded statements were co-conspirator statements. Defendant
and Ms. Lowe engaged in a “separate conspiracy to conceal” A.T.’s
death after the conspiracy to cause her death. Blecha, 962 P.2d at
938. Ms. Lowe’s statements to Ms. Graves were therefore made in
furtherance of, and during the course of, an active conspiracy.
¶ 123 We conclude that the trial court properly admitted these
statements as co-conspirator statements. And, although the
recorded statements included information in addition to the specific
statements in furtherance of the conspiracy, we further conclude
48 that the trial court did not abuse its discretion when admitting
them because the parties had agreed that the court should consider
“the statements coming in as a whole, rather than a line-by-line
analysis of each conversation.”
¶ 124 Last, to the extent that defendant also challenges these
nontestimonial statements under the Colorado Confrontation
Clause, “[t]he admissibility of co-conspirator statements is so firmly
rooted in law that a court need not independently inquire into the
reliability of a co-conspirator’s statement.” Villano, 181 P.3d at
1228-29. The admission of these statements therefore satisfied the
Colorado Confrontation Clause’s requirements. See Beller, ¶ 53 (“A
statement is sufficiently reliable for confrontation purposes if it falls
within a firmly rooted hearsay exception . . . .”).
3. Ms. Lowe’s Statements to Mr. Williams
¶ 125 Mr. Williams described a conversation he had with Ms. Lowe a
year before A.T. allegedly ran away. They were alone in a car when
Ms. Lowe pulled over and told Mr. Williams that A.T. had stopped
breathing during a bath. She claimed that, despite her efforts, she
could not bring A.T. back to life. When Mr. Williams asked her why
she did not call for help, she responded that she did not want her
49 children to be taken away because A.T. had a scar on her back from
a “beating.” She then told Mr. Williams that she and defendant had
decided to drive A.T.’s body far away to bury it. She said that, when
they were burying A.T., “she [could] hear[] the last little breaths of
life come out of her body.”
¶ 126 Ms. Lowe then explained that she and defendant had a story
to explain A.T.’s disappearance: Defendant had taken A.T. to see
her biological mother in Michigan and that someone had kidnapped
A.T. during the trip.
¶ 127 Ms. Lowe then asked Mr. Williams to commit identity theft to
help her raise money for defendant’s legal fees. He declined.
¶ 128 We conclude that Ms. Lowe’s statements to Mr. Williams about
A.T.’s death, her participation in A.T.’s burial, and her attempts to
conceal A.T.’s death were admissible statements against interest.
Much like the statements that Ms. Lowe had made to Ms. Graves,
she told Mr. Williams that A.T. had died without any prompting by
him. She then described her efforts to conceal the girl’s death. She
added that she had heard A.T.’s last breaths while she and
defendant were burying the girl. These statements about Ms.
Lowe’s efforts to conceal A.T.’s death subjected her to criminal
50 liability. And Ms. Lowe’s statement that A.T. was still breathing
when they buried her inculpated her in killing A.T.
¶ 129 The circumstances under which Ms. Lowe made the
statements also support the trial court’s determination that they
were reliable. Mr. Williams described his long relationship with Ms.
Lowe. He said that they had been best friends who confided in each
other. Ms. Lowe voluntarily made these statements to Mr. Williams
while they were alone in a car and when she was visibly upset. She
did not shift the blame to Mr. Thompson but equally inculpated
herself in (1) burying A.T. while she was still alive; and
(2) concealing A.T.’s death. We therefore conclude the court did not
abuse its discretion when it admitted Ms. Lowe’s statements to Mr.
Williams.
¶ 130 Ms. Lowe’s statement soliciting Mr. Williams to commit
identity theft to raise money for defendant’s legal funds is not as
straightforward. At the pretrial hearing, Mr. Williams testified that
Ms. Lowe asked him to commit identity theft during the same
conversation in which she disclosed A.T.’s death. At trial, however,
he testified that this statement was made “a week [or] week and a
half” later. Because the trial court did not consider this statement
51 separately, it did not make individualized reliability findings or
consider the circumstances under which this second conversation
occurred. Based on the record before us, we cannot determine the
trustworthiness of the statement. See Newton, 966 P.2d at 575-76
(explaining that trial court should make findings on the
trustworthiness of the statement against interest).
¶ 131 Even so, and if we assume that admitting this statement was
error, we conclude, for the following reasons, that this putative
error was harmless. First, it was not a constitutional error. See
Faussett, ¶ 54 (listing the facts a court should consider when
deciding whether an error is harmless). Second, this statement was
not crucial to the prosecution’s case. See id. Third, this statement
was somewhat tangential because it did not directly concern
defendant’s or Ms. Lowe’s responsibility for A.T.’s death. See id.
Fourth, the prosecutor did not emphasize this evidence in closing
argument. Fifth, this was not a close case; the prosecution’s
evidence was strong. See id.
52 D. The Children’s Statements
1. The Children’s Testimony About “the A.T. Story”
¶ 132 Following defendant’s report that A.T. had run away from
home, police officers spoke with the other seven children who lived
in the home. Forensic interviewers also spoke with most of the
children shortly after they had been removed from that home.
¶ 133 In the beginning, the children’s stories were fairly consistent.
They all repeated the story that A.T. had run away and that they
remembered seeing A.T. at home on the morning that defendant
had reported her as a runaway. The children also repeated similar
details about A.T., including describing her Halloween costume that
year and naming her favorite food and her favorite color. The court
described these statements as “the A.T. story.”
¶ 134 But, as time passed, the children revealed that the A.T. story
was a lie that defendant and Ms. Lowe had instructed them to tell.
¶ 135 The trial court admitted the children’s renditions of the A.T.
story not for the truth of the story — it was not true — but as
nonhearsay verbal acts. A verbal act is admissible to show that the
statement was actually made, not to prove the truth of it. People v.
Scearce, 87 P.3d 228, 233 (Colo. App. 2003). And, if an
53 out-of-court statement is not offered for its truth, it is admissible as
nonhearsay evidence as long as it is relevant to the issues
presented. Phillips, ¶ 62.
¶ 136 To the extent that defendant contends that the trial court
erred when it admitted the children’s individual versions of the A.T.
story, we disagree. The children knew when they told the A.T. story
to the police that it was false. They later admitted that defendant
and Ms. Lowe had instructed them to tell that false story.
¶ 137 The prosecution had charged defendant with contributing to
the delinquency of each child because he had instructed them to
make a false report to the police by telling the officers the A.T. story.
Those statements were therefore relevant, not for their truth, but to
prove that (1) defendant had told the children to lie to the police;
and (2) the children had done as they had been told.
¶ 138 Defendant adds that, because A.T.J. did not testify at trial, the
court violated the Federal Confrontation Clause when it admitted
his version of the A.T. story. See Crawford, 541 U.S. at 59. But
A.T.J.’s statements were verbal acts, and the court did not admit
them for their truth. Instead, as noted above, A.T.J.’s statements
provided evidence that, at defendant’s instruction, he had lied to
54 the police. Because A.T.J.’s statements were not hearsay, the
Confrontation Clause did not apply to them. People v. Robinson,
226 P.3d 1145, 1151 (Colo. App. 2009)(“[T]he admission of
nonhearsay does not implicate a defendant’s confrontation rights.”);
see also Crawford, 541 U.S. at 59 n.9 (“The Clause also does not
bar . . . the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.”); accord People v.
Isom, 140 P.3d 100, 103 (Colo. App. 2005).
¶ 139 We therefore conclude that the trial court did not abuse its
discretion when it admitted the children’s various versions of the
A.T. story that they had told to police officers and to forensic
interviewers.
2. The Children’s Statements About Child Abuse
¶ 140 Beginning with their initial police contact, the children
described the physical abuse that defendant and Ms. Lowe had
inflicted on them. The children continued to disclose more specifics
about the abuse as they made additional statements to forensic
interviewers, therapists, caseworkers, and foster parents.
¶ 141 After a pretrial evidentiary hearing, the trial court considered
the admissibility of the children’s statements one by one. The court
55 admitted the majority of these statements under the child hearsay
statute. See § 13-25-129(1), C.R.S. 2016. In doing so, it carefully
considered the relevant factors for admission, and then it provided
detailed and thorough findings about the reliability of the children’s
statements.
¶ 142 As an initial matter, we reject defendant’s contention that the
trial court erred when it denied his request to subpoena the
children to testify at the pretrial hearing. To be sure, a defendant
may subpoena a child victim to testify at a pretrial hearing, but only
if “he can show that such testimony would be relevant and
necessary.” People v. Snyder, 849 P.2d 837, 838 (Colo. App. 1992).
In many instances, the victim’s testimony may be needed for the
court’s pretrial admissibility determination, but there is no
requirement that the court must take such testimony. See id.
¶ 143 The trial court considered defendant’s offers of proof about
why he thought the children should testify at the hearing. But, in
light of the evidence that had already been presented, the court
decided that the children would not be required to testify.
¶ 144 Specifically, the court pointed to the testimony of the
witnesses to whom the children had made the statements, the
56 audio and video recordings of the statements, and the transcripts of
the statements. The court ruled that these sources of information
were “what really truly illuminates” whether the children’s
statements were reliable when they were made. In other words, the
children’s testimony about statements that they had made several
years before would not add anything meaningful to the court’s
analysis because it had ample evidence from the time when the
children had made those statements. We therefore conclude that
the record supports the court’s determination that the children did
not have to testify at the pretrial evidentiary hearing. E.g., People v.
Juvenile Court, 937 P.2d 758, 761 (Colo. 1997)(stating that a child
victim need not testify at the hearing).
¶ 145 We now turn to analyzing the trial court’s decision to admit
the children’s statements at trial. When a child abuse victim
testifies at trial, the child’s prior out-of-court statements about any
act of abuse that the child suffered or that the child witnessed may
be admitted if the court finds that the time, content, and
circumstances of the statements provide sufficient safeguards of
reliability. § 13-25-129(1)(a), (b)(I); People v. Pineda, 40 P.3d 60, 67
(Colo. App. 2001). These safeguards of reliability include factors
57 such as (1) whether the statement was spontaneous; (2) whether it
was made while the child was still upset or in pain from the alleged
abuse; (3) whether the language was likely to have been used by a
child of the victim’s age; (4) whether it was heard by more than one
person; (5) whether the child victim had a bias against the
defendant; (6) whether intervening events could account for the
statement; (7) whether the allegation was in response to a leading
question; and (8) the general character of the child victim. People v.
Rojas, 181 P.3d 1216, 1218-19 (Colo. App. 2008); see also People v.
Dist. Court, 776 P.2d 1083, 1089-90 (Colo. 1989). While these
factors provide guidance and direction, the absence of one or more
factor does not bar a court from admitting a statement. See Dist.
Court, 776 P.2d at 1090.
¶ 146 We will uphold a court’s decision to admit a child hearsay
statement “if the record shows an adequate factual basis to support
its decision.” Phillips, ¶ 91.
¶ 147 First, defendant contends that the children’s initial statements
to the police were not spontaneous, specific, or close in time to the
reported abuse. He also contends that the children were subjected
58 to interrogation techniques designed to “break” the children. The
record, however, refutes these assertions.
¶ 148 After the children relayed the A.T. story to the police officers,
the officers asked them individually about the type of punishment
they received. The children reported that they received “whoopins.”
While fairly general, their response was to an open-ended question,
they used age-appropriate language, and the court found that the
children did not have a motivation to lie about the child abuse.
¶ 149 The court also noted that the manner in which the children
brought up the abuse increased the reliability of their statements.
In particular, the court observed that the abuse “was such a
day-in-day-out reality [for] these children they didn’t even consider
it to be remarkable [such] that they shouldn’t tell law enforcement
about [it].” The record also supports these findings.
¶ 150 Second, defendant submits that the children’s reports of
abuse to their respective therapists, caseworkers, foster parents,
and teachers were unreliable because intervening events
precipitated the disclosures, the abuse did not occur close in time
to the disclosures, the children were aware that disclosing abuse
59 led to them receiving considerable attention, and the children’s
prior lies to the police undercut their credibility.
¶ 151 The trial court considered these arguments at the pretrial
hearing and found that factors surrounding the children’s
statements — considered in their individual circumstances —
overcame these contentions. See Rojas, 181 P.3d at 1220 (“[T]he
fact that not all the relevant factors support admissibility does not
require exclusion of the statements.”). The court found that the
children’s reports of abuse were made in response to open-ended
questions, in age-appropriate language, without a motivation to lie
about the abuse, and in environments in which the children felt
safe. Given the court’s thorough findings about the admissibility of
the children’s statements, we conclude that the court did not abuse
its discretion when it admitted these statements.
¶ 152 Third, we reject defendant’s contention that the trial court
should not have admitted the children’s descriptions of their abuse
in 2007 forensic interviews because that time was too remote from
the incidents of abuse. Although these interviews occurred almost
two years after the children were removed from the home, the
record supports the court’s finding that no intervening events had
60 occurred that would have prompted the children to make up their
descriptions of the abuse that they had suffered. And, for some of
the children, the therapeutic sessions they had participated in
during these two years appeared to explain why they were able to
recall specific incidents of abuse years after it occurred. In sum,
the circumstances surrounding these interviews and the content of
the children’s statements support the trial court’s determination
that they were reliable. See, e.g., People v. Brown, 2014 COA
155M-2, ¶ 29 (“[W]e defer to the trial court’s findings of fact which
are supported by the record.”).
3. Statements Admitted Under the Residual Hearsay Exception
¶ 153 Defendant next contends that the trial court erred when it
admitted some of the children’s out-of-court statements under the
residual hearsay exception, including: (1) A.L.’s 2007 forensic
interview; (2) R.R.’s statement to his foster parent; and (3) the
children’s admissions to the 2005 forensic interviewer that their
reports of A.T.’s disappearance were not truthful and that
defendant and Ms. Lowe had instructed them to lie.
61 a. Legal Principles
¶ 154 In the absence of a particularized exception, a trial court may
admit hearsay statements under the residual hearsay exception.
CRE 807. Under this exception, the court must determine that
(1) circumstantial guarantees of trustworthiness support the
statement; (2) the statement provides evidence of a material fact;
(3) the statement is more probative of the material fact than other
evidence available; (4) admission serves the interests of justice and
purposes of the rules of evidence; and (5) the adverse party had
adequate notice of the proponent’s intention to introduce the
statement. People v. Fuller, 788 P.2d 741, 744 (Colo. 1990).
¶ 155 In evaluating the trustworthiness of a statement for purposes
of the residual exception, “we examine the nature and character of
the statement, the relationship of the parties, the probable
motivation of the declarant in making the statement, and the
circumstances under which the statement was made.” McFee, ¶ 19.
The party offering the statement must establish its trustworthiness
by a preponderance of the evidence. Brown, ¶ 20.
62 b. A.L.’s Statements to the Forensic Interviewer
¶ 156 In 2007, A.L. made statements to the forensic interviewer
recounting specific instances of abuse that defendant and Ms. Lowe
had inflicted on him. A.L. also participated in a follow-up interview
with the police about these reports. Because A.L. was sixteen years
old at the time that he made these statements, the child hearsay
statute did not apply. See § 13-25-129(1).
¶ 157 But the court decided that these statements were admissible
under the residual hearsay exception. In making this
determination, the court found that the statements were supported
by circumstantial guarantees of trustworthiness because A.L.
(1) had no motivation to hurt defendant; (2) had first-hand
knowledge of the events; (3) made the statements during a forensic
interview; (4) made the statements after participating in therapy;
and (5) was comfortable speaking with the forensic interviewer. The
court also determined “that these statements [were] more probative
on the point in terms of the comfort level and being able to talk
about those things and give full descriptions.”
63 ¶ 158 For similar reasons, the court found that A.L.’s follow-up
interview with the police had “heightened reliability,” so it was
admissible under CRE 807.
¶ 159 We are not persuaded by defendant’s contention that the trial
court erred when it found that A.L.’s statements in the forensic
interview were not more probative of the abuse that he had suffered
than other available evidence. Even though A.L. was able to testify
to the instances of abuse, the trial court found that, because of
A.L.’s prior antagonistic demeanor toward law enforcement and, by
contrast, the surprising “comfort[]” that he had shown in the
forensic interview, he was able to provide a clear description of what
happened in the forensic interview. We defer to these findings
because the record supports them. See Brown, ¶ 29.
c. R.R.’s Statements to Police Officers
¶ 160 We next turn to R.R.’s statements. Following his interview
with the police officers, R.R. was crying and enraged. He blamed
the police for breaking his family apart. During the ride to his
foster home, he spoke in “a string of consciousness,” and he
admitted that he had not seen A.T. since he had moved in with
64 defendant and Ms. Lowe almost a year previously, and that Ms.
Lowe had instructed him what to tell the police about A.T.
¶ 161 The court admitted these statements under the residual
hearsay exception and as excited utterances. Even if we assume
that the court should not have admitted the statements under the
residual exception, defendant does not challenge their admission as
excited utterances on appeal. See CRE 803(2); see also Lawson v.
Stow, 2014 COA 26, ¶ 41 (“[A] party’s failure to present a cogent
argument contesting a court’s alternative basis for judgment
requires us to affirm the judgment.”); Phillips, ¶ 63 (“We may uphold
the trial court’s evidentiary decision on any ground supported by
the record . . . .”). We therefore conclude that the trial court did not
err when it admitted these statements as excited utterances.
d. The Children’s Statements to the Forensic Interviewer
¶ 162 Defendant next asserts that the trial court erred when it
admitted particular statements that the children made in 2005 to a
forensic interviewer. These statements included (1) the children’s
disclosures that defendant and Ms. Lowe had instructed them to lie
to the police; and (2) some related statements that the court had
admitted for the truth of the matters asserted in them.
65 ¶ 163 As we have observed above, the trial court made thorough and
detailed reliability determinations regarding each of these
statements, and it decided that the circumstances surrounding the
children’s disclosures during their forensic interviews were reliable
and more probative about the abuse than the other evidence. The
court noted that these statements were made immediately after the
children had been removed from the home and that they had given
“a real snapshot of what was going on” at that point in time.
¶ 164 We conclude that the trial court did not abuse its discretion
when it admitted these statements because the record supports the
trial court’s findings and analysis.
4. Special Concerns About the Reliability of K.W.’s Statements
¶ 165 Defendant asserts that K.W.’s statements were not reliable
because, at the time that she made them, she was developmentally
delayed and she had a speech impediment. We disagree.
The trial court admitted four of K.W.’s out-of-court statements:
K.W.’s initial statement to the police right after defendant
had reported that A.T. had run away. She said that A.T.
had walked down the street. The court admitted this
false report as a verbal act.
66 K.W.’s statement to a caseworker that A.T. had not been
in the home for some time.
K.W.’s forensic interview.
K.W.’s statement to her therapist that disclosed specific
instances of child abuse.
¶ 166 The trial court recognized that K.W. was developmentally
delayed, but it noted that “just because someone is developmentally
delayed[,] [it] does not make them ipso facto unreliable.” It then
considered the content and circumstances of K.W.’s out-of-court
statements. It found that, given the “matter of fact” manner in
which the statements were made and the appropriate language
used, there were sufficient guarantees of reliability. We conclude
that the record supports these findings and that the trial court did
not abuse its discretion when it admitted these statements.
E. Expert Testimony
¶ 167 Defendant asserts that two expert witnesses improperly
vouched for the children’s credibility. We disagree.
¶ 168 We review the trial court’s decision to admit expert testimony
for an abuse of discretion. See, e.g., People v. Watson, 53 P.3d 707,
711 (Colo. App. 2011). On the one hand, an expert witness may not
67 testify, either directly or by implication, that a child victim was
telling the truth when the child reported an incident of abuse. See
Venalonzo v. People, 2017 CO 9, ¶ 32. On the other hand, “experts
may testify concerning whether a victim’s behavior or demeanor is
consistent with the typical behavior or demeanor of victims of
abuse.” People v. Glasser, 293 P.3d 68, 78 (Colo. App. 2011).
¶ 169 One of the experts in this case, a psychotherapist, offered the
opinion that the children had come from a “closed family system.”
This meant that they could have trouble adjusting to the foster
homes in which they had been placed. She added that it was not
unusual for a victim of child abuse, (1) such as E.W.J. in this case,
to blame himself for the abuse that he had received; or, (2) such as
K.S. in this case, to shut down for a while, but then to remember
more particulars about her abuse over time.
¶ 170 The second expert, a forensic interviewer, talked about
“barriers to disclosure,” or factors in a child’s life that might prevent
him or her from disclosing what had happened. These included the
prospect that a parent might be imprisoned if the authorities
learned what had happened; familial relationships; and familial
68 cultures, such as when parents taught children not to cooperate
with police officers or with other governmental figures.
¶ 171 We conclude, for the following reasons, that the record in this
case establishes that these two experts did not vouch for the
children’s veracity, either directly or indirectly.
¶ 172 First, the experts did not testify, either directly or by
implication, that the children were telling the truth. See CRE
608(a); People v. Eppens, 979 P.2d 14, 17 (Colo. 1999).
¶ 173 Second, they did not say that they believed the children. See
People v. Oliver, 745 P.2d 222, 225 (Colo. 1987).
¶ 174 Third, they did not suggest that children do not tend to make
up a story that they have been abused. People v. Snook, 745 P.2d
647, 649 (Colo. 1987).
¶ 175 Fourth, they did not try to explain inconsistencies in the
children’s testimony. See Venalonzo, ¶ 36.
¶ 176 Rather, the experts’ testimony concerned the typical demeanor
and traits of abused children. See People v. Mintz, 165 P.3d 829,
831 (Colo. App. 2007). This testimony was admissible because it
helped the jury to understand the children’s behavior after they had
been abused. People v. Relaford, 2016 COA 99, ¶ 28. Such
69 information provided “a relevant insight into the puzzling aspects of
the child’s conduct and demeanor which the jury could not
otherwise bring to its evaluation . . . .” People v. Whitman, 205 P.3d
371, 383 (Colo. App. 2007)(citation omitted). In other words, the
expert testimony in this case “deal[t] with the . . . general
characteristics evidence which (1) relate[d] to an issue apart from
credibility and (2) only incidentally tend[ed] to corroborate a
witness’s testimony.” People v. Cernazanu, 2015 COA 122, ¶ 20.
F. Evidence Concerning Financial Circumstances
¶ 177 Defendant asserts that the trial court erred when it admitted
certain financial evidence, specifically (1) how much the search for
A.T. cost the taxpayers, as reflected by a video showing the police
search for her; (2) defendant’s and Ms. Lowe’s reliance on
government assistance, including subsidized housing and welfare;
and (3) evidence that defendant and Ms. Lowe had bought a
timeshare in Florida. He asserts that this information was only
relevant to show that he and Ms. Lowe were “sponges on society”
who had nonetheless purchased the luxury of a timeshare. We
disagree. We conclude that this evidence was relevant and that its
70 relevancy was not outweighed by the danger of unfair prejudice.
See CRE 401, 403.
¶ 178 First, the video documenting the police efforts to search for
A.T., which was only six minutes long, was relevant to show that
the police had taken defendant’s report that A.T. was missing
seriously, that they had not prematurely focused their investigation
on defendant and Ms. Lowe, and that their entire investigation was
not shoddy. (Ms. Lowe had told Ms. Graves that the police had not
done “anything” and that they did not believe defendant and Ms.
Lowe.) This probative value was not substantially outweighed by
the danger that it would unfairly prejudice the jury to regard
defendant with “sympathy, hatred, contempt, retribution, or
horror.” See Dist. Court, 785 P.2d at 147.
¶ 179 Second, the information about defendant’s and Ms. Lowe’s
welfare payments was relevant to show that they had claimed
benefits for A.T., and that they had continued to do so after she
died in order to keep her death secret. And the public housing
information was mentioned only fleetingly to explain why a witness
had inspected defendant and Ms. Lowe’s home. Again, this
information was not unduly prejudicial. See id.
71 ¶ 180 The timeshare application was admitted because defendant
had claimed that the entire family, including A.T., had gone to
Florida on vacation about five months before defendant had
reported to the police that she had run away. (Evidence established
that A.T. had died about eighteen months before this Florida trip.)
Defendant said that he did not have any photographs from this trip,
but Ms. Lowe provided photographs that did not include A.T. So
the application was relevant to show that the police had a reason to
expand their investigation to the area in Florida where the
timeshare unit was located to see if anyone had seen A.T. during
this period. There was nothing unduly prejudicial about this
information, either. See id.
¶ 181 Last, the prosecution did not contend that defendant and Ms.
Lowe were “sponges on society”; there was no suggestion that the
jury should convict defendant because he was a moocher or a
welfare cheat.
G. Cumulative Evidence
¶ 182 Defendant submits that the cumulative effect of all this
allegedly improper evidence risked confusing the jurors or tiring
them out. But defendant offers little in support of this submission.
72 He points to statements by several jurors that they doubted their
ability to sort through fifty-five counts, to an allegation that one
juror had been asleep at one point during the trial, and to the fact
that the jury sent the court eleven questions while it was
deliberating.
¶ 183 But none of these factors, separately or together, established
that the jury was exhausted or confused. The court excused the
jurors who thought that they could not work their way through all
the counts. The allegedly sleeping juror told the court that he had
not been sleeping and that he had been alert and listening to the
testimony. And the jury’s questions did not indicate that it was
confused or tired out. To the contrary, the jury asked the court to
clarify some instructions; it pointed out typographical errors on the
jury forms; and it wanted access to certain evidence.
¶ 184 We review the court’s decision to admit this allegedly
cumulative evidence for an abuse of discretion. People v. Pahlavan,
83 P.3d 1138, 1140 (Colo. App. 2003). “The fact that evidence is
cumulative does not, by itself, render the evidence inadmissible.”
Id. A court only abuses its discretion when it admits cumulative
evidence if that decision is “manifestly arbitrary, unreasonable, or
73 unfair under the circumstances.” Id. CRE 403 states that a court
should avoid the “needless presentation of cumulative evidence.”
(Emphasis added.)
¶ 185 We conclude, for the following reasons, that the court did not
abuse its discretion when it admitted the evidence that defendant
describes as cumulative.
¶ 186 First, the testimony of various witnesses about the A.T. story
was not needlessly cumulative. It was, instead, relevant to show
different aspects of the story and to establish that defendant and
Ms. Lowe had instructed the other children in the house to tell it to
the authorities. (Remember that defendant had been charged with
individual counts of contributing to the delinquency of each of these
children.) It also was relevant to prove the conspiracy between
defendant and Ms. Lowe.
¶ 187 Second, the testimony about the means that Ms. Lowe used to
discourage the children, Ms. Graves, and Mr. Williams from
speaking to the police — suggesting that defendant could get the
death penalty for killing A.T. and that the government would take
the children away — was not needlessly cumulative. It established
74 that Ms. Lowe had used these means in attempt to silence everyone
who knew about A.T.’s fate.
¶ 188 Third, the testimony from various witnesses about the
punishments that defendant and Ms. Lowe inflicted on the children
was not needlessly cumulative because it addressed the multiple
counts of child abuse in which each child was named as a victim.
¶ 189 Fourth, testimony from several witnesses about how A.T., in
particular, was punished by being placed in a closet — when
combined with a full-size model of the closet — corroborated the
children’s testimony and was not needlessly cumulative; it was
relevant to disprove defendant’s claim that the children had made
up the details of A.T.’s and their own abuse.
¶ 190 Fifth, the evidence that defendant and Ms. Lowe lived in public
housing, collected welfare, and had applied for the Florida
timeshare was not needlessly cumulative because it explained why
the police took certain steps in their investigation.
75 V. The Trial Court Did Not Abuse Its Discretion When It Imposed Consecutive Sentences on the Misdemeanor Child Abuse Counts
¶ 191 The jury convicted defendant of six counts of misdemeanor
child abuse. The victims were the six children, besides A.T., who
had lived with defendant and Ms. Lowe.
¶ 192 The trial court sentenced defendant to twenty-four months, or
the maximum, in the county jail on each count. The court then
ordered that these sentences were to be served consecutively to
each other, for a total of twelve years. The court then ordered
defendant to serve those sentences consecutively to the prison
sentences that the court had imposed on the other counts. The
court added that the consecutive jail sentences would precede the
prison sentences. We review a trial court’s sentencing decisions for
an abuse of discretion. People v. Muckle, 107 P.3d 380, 382 (Colo.
2005). Defendant contends that the trial court did not provide a
reasonable explanation for its decision to order defendant to serve
the misdemeanor sentences consecutively to the prison sentence
and before the prison sentence. We conclude, for the following
reasons, that the trial court did not abuse its discretion when it
imposed the consecutive sentences.
76 ¶ 193 First, the court generally stated that, among other things, the
“seriousness of the offense, the gravity of the offense, and the effects
on the children [were] the driving factor[s] in imposing sentence in
this case.” It added that “the level of abuse suffered by those
children” justified the maximum sentence on each count.
¶ 194 Second, the court also referred to section 18-1.3-501(1)(c),
C.R.S. 2016. As People v. Valadez, 2016 COA 62, ¶ 11, points out,
this statute created a general rule and an exception. The general
rule was that a court would not normally order a defendant to serve
a jail sentence for a misdemeanor consecutively to a prison
sentence for a felony. See id. The exception was that a court could
decide, “after consideration of all the relevant facts and
circumstances, that a concurrent sentence [was] not warranted.”
§ 18-1.3.-501(1)(c). It could then impose a consecutive
misdemeanor sentence. See Valadez, ¶ 15. If a concurrent
sentence was not warranted, the court “must toll the prison
sentence [and] order that the [consecutive] county jail
sentence . . . be served before the remainder of the prison
sentence.” Id. at ¶ 27. “After fully serving the jail sentence, the
77 prisoner must then be transferred back” to prison “to serve the
remainder of his prison sentence.” Id.
¶ 195 Third, the misdemeanor sentences involved six different
victims, and the prison sentences focused on the death of the
seventh victim, A.T. See People v. O’Dell, 53 P.3d 655, 657 (Colo.
App. 2001)(explaining that, when multiple victims are named in
multiple convictions, the court has discretion to impose consecutive
sentences); see also People v. Howell, 64 P.3d 894, 898 (Colo. App.
2002)(a trial court is only required to describe the basic reasons for
imposing a particular sentence); People v. Koehler, 30 P.3d 694, 698
(Colo. App. 2000)(a trial court is not required to explicitly comment
on each of the statutory factors that it considered).
VI. Things That We Will Not Consider
A. Attachments to the Opening Brief
¶ 196 Defendant attached five appendices to his opening brief. The
prosecution asserts that these appendices constitute an improper
attempt to provide additional legal authority and record citations
outside of the word limit that a division of this court had previously
authorized. We agree.
78 ¶ 197 Defendant’s opening brief initially contained almost 36,000
words and one appendix. See C.A.R. 28(g)(1)(“An opening . . . brief
must contain no more than 9,500 words.”). A division of this court
struck the opening brief, but it granted defendant leave to file an
amended oversized brief containing no more than 25,700 words.
His amended opening brief fell just within this word limit, but the
number of appendices quintupled, and they contained lengthy legal
and record citations.
¶ 198 Given that the division authorized defendant to file an opening
brief that was two-and-a-half times longer than the length
established by C.A.R. 28(g)(1), we conclude that this addition of
eighteen additional pages of appendices “makes a mockery of the
rules that govern the length of briefs.” Castillo v. Koppes-Conway,
148 P.3d 289, 291 (Colo. App. 2006). We therefore shall not
consider the appendices, including any contentions in them that
are not raised in the opening brief itself. See id.; Legro v. Robinson,
2015 COA 183, ¶ 30 n.8.
B. Insufficiently Developed Contentions
¶ 199 We also will not review contentions that have not been
“sufficiently developed.” See People v. Allman, 2012 COA 212, ¶ 15;
79 see also People v. Simpson, 93 P.3d 551, 555 (Colo. App. 2003)(“We
decline to consider a bald legal proposition presented without
argument or development . . . .”). So we will not address the
following contentions that defendant raised in his opening brief.
Defendant asserts that the trial court should not have
followed section 16-10-110, C.R.S. 2016, and informed the
jury that the prosecution was not seeking the death penalty
as defendant’s punishment. He contends that this statute
was unconstitutional as applied to him.
As far as we can tell from the record, defendant did not
challenge the statute as it applied to him in the trial court.
Instead, he generally objected to the statute’s
constitutionality. He said that “none of the cases that
tested the statute in terms of constitutional fundamental
fairness” had considered the statute when “the highest
charge [was] a class two felony.” He added that, because he
was not facing a capital charge, “injecting the term death
penalty into any of the rhetoric surrounding this case”
could impair his right to a fair trial. He did not expand on
these statements. (Our supreme court has already rejected
80 a facial challenge to the statute. People v. Smith, 848 P.2d
365, 369 (Colo. 1993).)
Defendant raised his as-applied challenges for the first
time on appeal. He contends that the statute was
unconstitutionally applied to him because the instruction
invited the jury to (1) speculate why the death penalty was
not sought; (2) presume that defendant may have “gotten off
easy[]”; and (3) convict with impunity given that “there was
no danger that [defendant] would be subject to the death
penalty.” But defendant (1) did not explain to the trial court
how the instruction deprived him of a fair trial; and
(2) admitted that he could not “tell the court what . . . effect
[the instruction] will [have] on the jury”; and (3) did not
describe any other constitutional problems that the statute
may have presented as applied to him.
We will not consider these as-applied challenges
because defendant did not develop any facts to support
them in the trial court. See People v. Patrick, 772 P.2d 98,
100 (Colo. 1989)(“We . . . stress that we cannot determine
the as-applied constitutionality of a statute based upon an
81 incomplete record of the facts.”); People v. Veren, 140 P.3d
131, 140 (Colo. App. 2005)(“[I]t is imperative that the trial
court make some factual record that indicates what causes
the statute to be unconstitutional as applied.”).
Defendant contends that the prosecution’s reference to
the death penalty in its opening statement violated a trial
court order. But he did not adequately develop this issue in
the opening brief.
Defendant asserts that the court’s decision to allow
multiple witnesses to testify about the same information
violated CRE 403, and the sheer mass of the evidence
“overwhelmed and traumatized the jury,” thereby violating
defendant’s rights to due process and to a fair and impartial
jury. But this contention is entirely speculative, so we will
not address it.
Defendant asserts that, by unduly lengthening the trial,
the cumulative evidence “skew[ed]” the jury pool “in favor of
those who would not be financially impacted by an
estimated nine-week trial.” The result of such “skewing”
was to deny defendant his constitutional right to a fair
82 cross-section of the community. The record does not
contain any proof of this assertion, and defendant only cites
a law review article to support it.
¶ 200 The judgment of conviction is affirmed.
JUDGE WEBB concurs in part and specially concurs in part.
JUDGE DUNN concurs in part and dissents in part.
83 JUDGE WEBB, concurring in part and specially concurring in
part.
¶ 201 In general, I concur with Judge Bernard’s opinion and
specifically agree that the judgment of conviction should be
affirmed. However, I write separately to offer two alternative
reasons why defendant’s argument that the trial court effectively
denied him counsel of choice by conditioning payment of costs,
such as for experts and investigators, on public defender
representation fails.
First, David Lane, while acting as defendant’s pro bono
counsel, invited any error.
Second, where the General Assembly has limited the
expenditure of public funds, under separation of powers
principles that limitation cannot be circumvented by a chief
justice directive (CJD).
¶ 202 Either of these reasons would avoid the novel constitutional
analysis of the right to counsel that Judge Bernard presents, on
which I take no position. See Developmental Pathways v. Ritter,
178 P.3d 524, 535 (Colo. 2008) (“[T]he principle of judicial restraint
requires us to ‘avoid reaching constitutional questions in advance of
84 the necessity of deciding them.’” (quoting Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988))).
I. Invited Error
¶ 203 Shortly after the grand jury indicted defendant, the trial court
held a hearing at which Mr. Lane spoke “on behalf of Aaron
Thompson, who appears in custody.” But rather than entering a
general appearance, Mr. Lane argued:
“Mr. Thompson is indigent and [he] can’t pay for those
ancillary services necessary to ensure that his rights under
the 6th Amendment to the effective assistance of counsel are
really protected.”
“[I]f the defendant is indigent, regardless of whether counsel
has been retained for a dollar or a million dollars or is
volunteering, the court is obligated to provide indigent [sic]
services to the indigent defendant.”
“And the case in Colorado to the contrary stands alone in the
country, and the case is cited as People v. Cardenas, [62] P.3d
621 [Colo. 2002] . . . .”
85 “So what this Court has to wrestle with right now is, I am
retained counsel, Cardenas says this Court has no authority
to order ancillary services to be paid for by governmental
funding for Mr. Thompson. But Mr. Thompson wants me to
represent him, and under [United States v. Gonzalez-Lopez,
548 U.S. 140 (2006)], that rises to the level of constitutional
significance.”
“[B]ecause Mr. Thompson cannot possibly get a fair trial
without those [ancillary] services, if my being his lawyer will
preclude that from happening, I, over objection, will step aside
and ask that this Court appoint the Public Defender’s
Office . . . .”
¶ 204 Mr. Lane ended with, “[t]he Court, under Cardenas, can’t give
them to Mr. Thompson, so I’m throwing it now in the Court’s lap.”
Then, when the trial court declined “the opportunity to overrule
Cardenas,” it sought to confirm that Mr. Lane would not be entering
an appearance for defendant. Mr. Lane replied, “That’s fair. And
it’s over Mr. Thompson’s objection, Your Honor, under the 6th and
14th Amendments to the United States Constitution and analogous
provisions of the Colorado Constitution.”
86 ¶ 205 Then the public defender entered an appearance for
defendant.
B. Law
¶ 206 “Generally, the invited error doctrine precludes appellate
review of errors created by a party.” People v. Gross, 2012 CO 60M,
¶ 8. This is so because a defendant “may not complain on appeal of
an error that he has invited or injected into the case; he must abide
the consequences of his acts.” People v. Zapata, 779 P.2d 1307,
1309 (Colo. 1989). Simply put, this doctrine “[o]perates to bar a
disappointed litigant from arguing on appeal that an adverse
decision below was the product of error, when that party urged the
lower court to adopt the proposition now alleged to be error.”
Horton v. Suthers, 43 P.3d 611, 618 (Colo. 2002) (quoting Brett v.
Great Am. Recreation, 677 A.2d 705, 717 (N.J. 1995)). Even so,
where “the error resulted from counsel’s oversight, . . . the appeal
[i]s not precluded by the invited error doctrine.” Gross, ¶ 9.
¶ 207 But on the facts presented in Gross, the court held that invited
error prevailed over alleged attorney oversight. It explained:
In this case, however, defense counsel argued affirmatively for the initial aggressor instruction despite opposition by the
87 prosecution. The invited error doctrine bars precisely such an intentional, strategic decision. This is especially true where the prosecutor objected to the proposed instruction. If this court were to extend the attorney incompetence exception to deliberate, strategic acts by counsel, then trial courts would be required to evaluate the propriety of counsel’s trial strategy to determine whether to give a requested instruction. Such a result would be an untenable burden because assessing counsel’s strategy does not fall within the purview of the trial court. Instead, where counsel’s trial strategy is arguably incompetent, it should be challenged on grounds of ineffective assistance of counsel under Crim. P. 35(c).
Id. at ¶ 11.
¶ 208 Since Gross, the supreme court has not addressed whether a
deliberate act by counsel would alone trigger invited error, leaving
the choice between strategy and incompetence for postconviction
inquiry. A division of this court has read Gross “to distinguish
errors based on trial counsel’s omission from those of commission
in limiting appellate review.” People v. Foster, 2013 COA 85, ¶ 36.
“While appellate courts may review the former for plain error, the
latter generally will be unreviewable.” Id. Other divisions have
agreed. See People v. Riley, 2016 COA 76, ¶ 9 (“In this case,
defense counsel requested that the jury be instructed on the lesser
88 non-included offense of public indecency. He now complains that
the evidence is insufficient to support the charge he requested.”);
People v. Becker, 2014 COA 36, ¶ 20 (“The invited error doctrine
does not, however, apply to errors that resulted from a defendant’s
inaction rather than affirmative conduct.”); People v. Zadra, 2013
COA 140, ¶ 48 (“We may review errors based on trial counsel’s
omissions for plain error, but errors created by trial counsel are not
reviewable.”).
¶ 209 To be sure, as the dissent points out, “[t]rial judges are
presumed to know the law and to apply it in making their
decisions.” (Citation omitted.) But the dissent cites no Colorado
authority, nor am I aware of any, using this presumption to trump
invited error. Instead, the dissent quotes from People v. Lara, 103
Cal. Rptr. 2d 201, 220 (Cal. Ct. App. 2001). But that court
recognized “the court’s duty can only be negated in that ‘special
situation’ in which defense counsel deliberately or expressly, as a
matter of trial tactics, caused the error.” Id. at 220. And in
Colorado, as discussed above, counsel’s affirmative action obviates
the tactical or inadvertence inquiry.
89 ¶ 210 “Whether the invited error doctrine applies here is an issue we
consider de novo.” Becker, ¶ 20.
¶ 211 Everyone would agree that Mr. Lane acted affirmatively in
juxtaposing defendant’s need for public funding of expenses to
obtain effective assistance of counsel against the Cardenas holding
that such funding was available only to defendants who were
represented by the public defender’s office. But did Mr. Lane inject
the error defendant now argues on appeal — that the court should
have ruled, sua sponte, that Cardenas has been superseded by
Chief Justice Directive 04-04, Appointment of State-Funded
Counsel in Criminal Cases and for Contempt of Court (amended
Nov. 2014)? That CJD allows the judicial department to pay “a
defendant’s court costs, expert witness fees, and/or investigator
fees” if “[t]he defendant . . . is receiving pro bono, private counsel.”
Id. at § V(D)(1)(b) (formerly § IV(D)(b)).
¶ 212 On the one hand, Mr. Lane did not mention the CJD. Even so,
arguments raised for the first time on appeal are generally subject
to plain error review. See Reyna-Abarca v. People, 2017 CO 15, ¶ 2
(“We now conclude that unpreserved double jeopardy claims can be
90 raised for the first time on appeal, and appellate courts should
ordinarily review such claims for plain error.”).
¶ 213 On the other hand, Mr. Lane presented the trial court with a
dilemma: either decline to follow Cardenas because of an
intervening Supreme Court decision and allow defendant to receive
public funding for expenses while represented by Mr. Lane, or
follow Cardenas and appoint the public defender to represent
defendant so that defendant could receive such funding. Thus, Mr.
Lane did not merely make one argument while failing to make
another argument that could, with the invariably perfect wisdom of
hindsight, be raised on appeal. Rather, in highlighting the
consequences of following Cardenas, he told the trial court that
there were only two possible resolutions.
¶ 214 To no one’s surprise, the trial court considered itself bound by
Cardenas, as the later Supreme Court decision Mr. Lane cited did
not address either Cardenas or the question of limiting public
funding of expenses to indigent defendants who are publicly
represented. See People v. Martinez, 254 P.3d 1198, 1202 (Colo.
App. 2011) (“Defendant contends that the rationale of
Hinojos-Mendoza may no longer apply after the decision by the
91 United States Supreme Court in Melendez-Diaz v. Massachusetts
. . . . We disagree with the hypothetical suggestion attributed to the
Supreme Court. Furthermore, we are bound by our supreme
court’s explicit holdings.”); cf. Day v. Apoliona, 496 F.3d 1027, 1031
(9th Cir. 2007) (district courts are bound by circuit authority unless
there is clearly irreconcilable intervening Supreme Court authority).
¶ 215 In sum, Mr. Lane urged the court to conclude that the
outcome of his request for public funds was binary: either
Gonzalez-Lopez had abrogated Cardenas, or Cardenas precluded
defendant from receiving public funds for trial expenses unless he
chose public defender representation. The court accepted this
argument and selected one of the two options that Mr. Lane
presented. But defendant now rejects Mr. Lane’s argument that the
law presented the court with only two options, and asserts that the
trial court erred when it selected one of the options presented.
¶ 216 I discern no principled distinction between Mr. Lane’s
either/or proposal and defense counsel tendering two different
versions of a jury instruction on the same subject, then urging that
controlling precedent required the trial court to pick one or the
other. After all, “courts[] rely upon the presentation of oral
92 argument by well-prepared attorneys to assist . . . in reaching an
appropriate resolution of the often difficult questions presented in
the cases before [them].” In re Aguilar, 97 P.3d 815, 818 (Cal.
2004). Because Mr. Lane presented these options as mutually
exclusive, the invited error doctrine prevents defendant from raising
a third option on appeal. See Foster, ¶ 25; cf. United States v.
Falcon, 462 F. App’x 866, 868 (11th Cir. 2012) (unpublished
opinion) (After defendant acknowledged in the district court that the
“loss amount” was either $1.4 or $1.7 million, his appellate
argument that the loss amount was actually zero was barred by
invited error doctrine.).
¶ 217 For these reasons, I would decline to review defendant’s new
appellate argument that the CJD has superseded Cardenas.
II. A CJD Cannot Supersede a Statutory Limitation on the Expenditures of General Funds
¶ 218 Even if invited error does not prevent us from considering
defendant’s argument that CJD 04-04 requires public funding of
his defense expenses — a proxy for his counsel of choice argument
— I would further conclude that, assuming this CJD gave defendant
access to the public funding that he sought, it cannot supersede the
93 supreme court’s contrary statutory interpretation in Cardenas. Two
observations book end this conclusion.
¶ 219 First, the allocation of state general revenues is a plenary
power of the General Assembly. Colo. Gen. Assembly v. Lamm, 700
P.2d 508 (Colo. 1985) (holding that governor’s transfer of funds
from executive departments for which funds were appropriated to
other executive departments impermissibly infringed upon General
Assembly’s plenary power of appropriation, and therefore did not
fall within inherent administrative authority of Governor over state
budget). But sometimes, the General Assembly does more by
specifying just how those funds may be spent. Colo. Gen. Assembly
v. Lamm, 704 P.2d 1371, 1381 n.5 (Colo. 1985) (“The right of the
[l]egislature to control the public treasury, to determine the sources
from which the public revenues shall be derived and the objects
upon which they shall be expended, to dictate the time, the manner,
and the means, both of their collection and disbursement, is firmly
and inexpugnably established in our political system.” (quoting
Colbert v. State, 39 So. 65, 66 (Miss. 1905))) (emphasis added). And
in Cardenas, our supreme court held that the General Assembly
had done just that as to public funding of defense costs for
94 defendants who qualified for public representation. 62 P.3d at 622-
23.
¶ 220 Second, by statute, indigent defendants charged with a crime
“are entitled to legal representation and supporting services at state
expense.” § 18-1-403, C.R.S. 2016. In Cardenas, the supreme
court addressed the trial court’s refusal to provide an interpreter at
state expense. 62 P.3d at 622. Although the defendant, who
claimed to speak only Spanish, was represented by private pro bono
counsel who did not, the supreme court affirmed the trial court in
denying the indigent defendant’s request for these services. Id. at
623. Cardenas acknowledged that “indigent defendants are entitled
to state-paid legal representation and supporting services.” Id. at
622. Still, it concluded that if an indigent defendant “wants the
state to pay the costs of his attorney and supporting services, his
only choice is to be represented by the public defender, or . . . a
state-appointed alternate defense counsel.” Id. at 623 (emphasis
added).
¶ 221 The supreme court could have decided the case narrowly by
deferring to trial court discretion. Instead, it came to this
95 conclusion more broadly, as a matter of statutory interpretation, in
three steps.
First, it noted the cross-reference in the statute to “in the
manner provided for in articles 1 and 2 of title 21, C.R.S.”1 Id.
at 622.
Second, it pointed out that “[t]he General Assembly has
created an agency charged with providing legal representation
and services to indigent defendants: the office of state public
defender [which,] upon application from a defendant, is
required to make a determination that the defendant is
indigent before he may obtain the services of that office.” Id.
at 623.
Third, because the defendant “has not applied for the services
of the public defender,” instead “cho[osing] to be represented
by [pro bono counsel],” it held that he had placed himself on a
different path for obtaining support services. Id.
¶ 222 But despite this statutory interpretation, can a later CJD
create a hybrid path to the same end? Specifically, CJD 04-04
1See §§ 21-1-101 to -106, C.R.S. 2016 (public defender); §§ 21-2-101 to -107, C.R.S. 2016 (alternate defense counsel).
96 section V(D)(1)(b) permits public funding of expenses when “[t]he
defendant is indigent and receiving pro bono, private counsel.” I
would say “no,” for the following reasons.
¶ 223 “In Colorado, the General Assembly has retained the power to
formulate the state’s budget.” Colo. Gen. Assembly v. Owens, 136
P.3d 262, 265 (Colo. 2006). And, “‘[n]o moneys in the state treasury
shall be disbursed . . . except upon appropriations made by law, or
otherwise authorized by law.’” People v. Nelson, 2015 CO 68, ¶ 38
(quoting Colo. Const. art. V, § 33), cert. granted sub nom. Nelson v.
Colorado, 579 U.S. __, 137 S. Ct. 30 (2016). The judicial
department enjoys no exception — a court must “follow the
statutes’ instructions on how that money may be used.” Id. at ¶ 39.
¶ 224 As interpreted in Cardenas, 62 P.3d at 622-23, the General
Assembly has provided a framework to fund representation and
support costs for indigent defendants.2 “[W]e are bound by the
2 Although the judicial department collects some revenue directly, such as through court filing fees, Chief Justice Directive 04-04, Appointment of State-Funded Counsel in Criminal Cases and for Contempt of Court (amended Nov. 2014), does not indicate that any of the funding for expanded support services comes from such sources, as opposed to from the department’s general fund budget allocation. See People v. Orozco, 210 P.3d 472, 476 (Colo. App.
97 supreme court’s interpretation of [a] statute.” People v. Nerud, 2015
COA 27, ¶ 20. But by authorizing the expenditure of state funds on
defendants who are represented by separate counsel, the CJD
exceeds the statutory boundaries recognized in Cardenas.3
2009) (“Under CJD 04-04 § IV(D)(c) [currently § V(D)(1)(c)], payment from the Judicial Department’s budget is appropriate.”). Even so, the dissent suggests that the record is insufficiently developed to conclude that defense costs come from general funds allocated to the judicial department. But Thompson’s supplemental brief did not raise this concern. To the contrary, it said, [i]n the fiscal year 2006-2007, the year relevant to this case, the General Assembly appropriated funds for ‘the ordinary operating costs of the executive, legislative and judicial departments of the state.’ See H.B. 06-1385, 65th Gen. Assemb. 2d Reg. Sess., Ch. 394 at 2498 (2006). Included within the appropriations is a fund for ‘trial court programs,’ which later appropriations clarify as including ‘Court Costs, Jury Costs, and Court-appointed Counsel.’ See H.B. 06-1385 at 2624-25; H.B. 16-1243, 7th Gen. Assemb., 2d Reg. Sess., Ch. 375 at 16 (2016). Thus, the legislature specifically granted the judicial department an appropriation to fund trial court programs, and did not place limitations on the funding of indigent defense.
3Apart from separation of powers, where a statute provides a means for doing something, principles of statutory interpretation disfavor reading into it an entirely different means for doing the same thing. See Hiner v. Johnson, 2012 COA 164, ¶ 19 (“Because C.R.C.P. 102(a) expressly refers to the property of defendants, but
98 ¶ 225 To be sure, the Chief Justice is the executive head of the
judicial department and “implements her administrative authority
by means of Chief Justice Directives, under the supreme court’s
general superintending power over the court system.” Office of
State Court Adm’r v. Background Info. Servs., Inc., 994 P.2d 420,
430-31 (Colo. 1999). However, this authority has limits. Cf. Colo.
Common Cause v. Gessler, 2012 COA 147, ¶ 18 (“[An] agency does
not have the authority to promulgate rules that modify or
contravene statutory or constitutional provisions.”), aff’d, 2014 CO
44; Colo. Consumer Health Initiative v. Colo. Bd. of Health, 240 P.3d
525, 528 (Colo. App. 2010) (An exercise of administrative authority
“may not modify or contravene an existing statute, and any rule
that is inconsistent with or contrary to a statute is void.”).
¶ 226 “[S]eparation of powers requires that the co-equal branches of
government, the executive, legislative, and judicial, exercise only
does not refer to the property of plaintiffs in cases in which defendants do not assert a counterclaim, we apply the canon of statutory interpretation expressio unius exclusio alterius — ‘the inclusion of certain items implies the exclusion of others.’”) (citation omitted); see also Harrah v. People ex rel. Attorney Gen. of Colo., 125 Colo. 420, 426, 243 P.2d 1035, 1038 (1952) (“[W]e cannot by implication read into it words that are not present, nor supply remedies not clearly provided by language employed in the act.”).
99 their own powers and not usurp the powers of another co-equal
branch of government.” People v. Hollis, 670 P.2d 441, 442 (Colo.
App. 1983). That said, “the judicial branch of government
possesses the inherent power to determine and compel payment of
those sums of money which are reasonable and necessary to carry
out its mandated responsibilities.” Pena v. Dist. Court, 681 P.2d
953, 956 (Colo. 1984). But I discern no basis for concluding,
especially after Cardenas, that “mandated responsibilities” of the
judicial branch include providing public funding to privately
represented, indigent defendants who can obtain that funding
merely by accepting public defender or alternate defense counsel
representation.
¶ 227 In resolving conflicts between statutes and court rules, the
distinction between procedure — where the rule controls — and
substance — where the statute controls — marks the boundary.
See People v. Prophet, 42 P.3d 61, 62 (Colo. App. 2001). And “rules
adopted to permit the courts to function efficiently are procedural.”
Id.
¶ 228 In contrast, substantive law creates, defines, and regulates
rights and duties. Id. As relevant here, section 18-1-403 regulates
100 an indigent defendant’s right to a state-funded defense. For such
defendants, that right has constitutional significance. Thus,
because section 18-1-403 deals with more than mere procedure or
court efficiency, the CJD must yield to the statute.
¶ 229 In sum, because the General Assembly has chosen to restrict
disbursement of general funds for support services to indigent
defendants who are publicly represented, in my view a CJD may not
provide for disbursement of the same funds where representation is
by private pro bono counsel.
¶ 230 For the foregoing reasons, I concur with Judge Bernard that
the judgment of conviction should be affirmed.
101 JUDGE DUNN, concurring in part and dissenting in part.
¶ 231 On a fall day in 2005, Mr. Thompson reported that his
daughter, A.T., had run away. Early on, however, the police began
to suspect that A.T. was actually dead and that Mr. Thompson was
involved in her death. During the two-year police investigation that
followed, David Lane, a private defense attorney, represented Mr.
Thompson. After a grand jury indicted Mr. Thompson, the trial
court concluded that, should Mr. Lane continue to represent Mr.
Thompson as private counsel, the court had no authority to
authorize state-funded support services. The trial court was
mistaken. The upshot of this mistake was that — although Mr.
Lane was Mr. Thompson’s counsel of choice — Mr. Lane ceased
representing Mr. Thompson.
¶ 232 Because I conclude that the trial court had discretion to
consider and authorize the requested support services, I do not see
this case as presenting a choice between competing constitutional
rights. Colorado does not require an indigent defendant to choose
between ancillary support services and his counsel of choice. Much
to the contrary, an indigent defendant in this state may be
represented by a private, pro bono attorney and still receive
102 state-funded support services. Given this, I find it unnecessary to
tread the same constitutional path as my valued colleague writing
for the majority. My focus is admittedly much narrower. In my
view, because the trial court erred in failing to recognize its
authority to consider and authorize the requested support services,
Mr. Thompson effectively was deprived of his Sixth Amendment
right to the counsel of his choice. Mindful that my colleagues
disagree with this conclusion, albeit for different reasons, I
respectfully dissent from Part II of the majority opinion.
I. The Request for State-Funded Support Services
¶ 233 At Mr. Thompson’s first court appearance, Mr. Lane entered
his appearance “with an asterisk” and explained that he had been
representing Mr. Thompson “for about two years,” Mr. Thompson
wanted Mr. Lane to continue to represent him, and Mr. Lane was
willing to continue to do so. Mr. Lane then asked the court to
authorize state-funded expert and investigative services, which he
contended were necessary to represent Mr. Thompson effectively.
But, he continued, “[I]f this [c]ourt won’t do that, I’m registering an
objection under the 6th and 14th Amendments to the United States
Constitution.” And he stated that, “over objection, [he would] step
103 aside” to allow Mr. Thompson these services through
court-appointed counsel.
¶ 234 Despite Mr. Lane’s plea for state-funded support services, he
also told the court that it did not have the authority to grant his
request because the Colorado Supreme Court prohibited it under
People v. Cardenas, 62 P.3d 621 (Colo. 2002). Still, Mr. Lane
suggested the trial court could authorize the services because
Cardenas was inconsistent with an intervening United States
Supreme Court case, United States v. Gonzalez-Lopez, 548 U.S. 140
(2006), which, he asserted, recognized the constitutional
significance of depriving a defendant of his counsel of choice.
¶ 235 Mr. Lane summarized his request for state-funded services by
arguing that, “under Gonzale[z]-Lopez,” Mr. Thompson “wants me to
be his lawyer of constitutional significance.” But, Mr. Lane added,
“[Mr. Thompson] needs these [state-funded support] services,” and
“[t]he [c]ourt, under Cardenas, can’t give them to [him].” As a
result, Mr. Lane finished, “I’m throwing it now in the [c]ourt’s lap.”
¶ 236 Thanking Mr. Lane for “the opportunity to overrule Cardenas,”
the trial court “respectfully declined.” The court then stated that it
was “not going to rule on the issue of ancillary services.” And the
104 court stated its understanding that, “based on [its] nonruling on
ancillary services, [Mr. Lane would] not enter[] [his] appearance at
that point, understanding [Mr. Lane had] made [his] record.” Mr.
Lane acknowledged the court’s summary was “fair” but again
reminded the court that it was “over Mr. Thompson’s objection . . .
under the 6th and 14th Amendments to the United States
Constitution and analogous provisions of the Colorado
¶ 237 As it goes, I find no fault in the trial court’s view of Cardenas.
Cardenas considered whether a trial court abused its discretion in
declining to authorize state-funded interpreter services to a
defendant represented by private, pro bono counsel. Cardenas, 62
P.3d at 622. In doing so, it construed Colorado’s indigent defense
services statute, section 18-1-403, C.R.S. 2016.1 And it concluded
1 Colorado’s indigent defense services statute states that indigent defendants charged with a crime “are entitled to legal representation and supporting services at state expense.” § 18-1-403, C.R.S. 2016. Unlike other indigent defense services statutes, Colorado’s statute does not expressly prohibit an indigent defendant represented by private counsel from receiving state-funded support services. Cf. Utah Code Ann. § 77-32-303(2) (West 2012) (Where a defense services provider is available, a court “may not order” and “may not provide defense resources for a
105 that, under that statute, if an indigent defendant “wants the state
to pay the costs of his attorney and supporting services, his only
choice is to be represented by the public defender, or . . . a
state-appointed alternate defense counsel.” Cardenas, 62 P.3d at
622-23.
¶ 238 So if Cardenas were the end of the story, I would agree with
the majority’s outcome. After all, neither this court nor the trial
court can overrule Cardenas.
¶ 239 But Cardenas should not have ended the inquiry. After
Cardenas was decided — but several years before Mr. Thompson’s
indictment — the Chief Justice of the Colorado Supreme Court
issued a directive expanding the circumstances under which
state-funded support services may be provided to indigent
defendants. See Chief Justice Directive 04-04, Appointment of
Court, § V(D) (amended Nov. 2014) (CJD 04-04) (formerly § IV(D));
see also People v. Stroud, 2014 COA 58, ¶ 8 (recognizing that CJD
defendant who has retained private counsel” except in circumstances outlined in the statute.). It is simply silent on the issue.
106 04-04 “expanded the circumstances in which support services may
be provided”).
¶ 240 The CJD plainly provides that “[i]n certain circumstances, a
defendant’s court costs, expert witness fees, and/or investigator
fees may be paid by the Judicial Department even though the
defendant is not represented by state-funded counsel.”2 CJD 04-04
§ V(D). The directive allows courts to authorize the judicial
department to pay for these support services, if any of the following
applies:
a) [t]he defendant is indigent and proceeding pro se;
b) [t]he defendant is indigent and receiving pro bono, private counsel;
c) [t]he defendant is receiving private counsel but becomes indigent during the course of the case, and the court has determined that the defendant lacks sufficient funds to pay for court costs and that it would be too disruptive to the proceedings to assign the Public Defender or Alternate Defense Counsel to the case.
2 Since its 2004 inception, CJD 04-04 has allowed courts to authorize state-funded support services for indigent defendants represented by pro bono, private counsel.
107 ¶ 241 It is hardly remarkable to conclude that a trial court’s failure
to recognize its discretion under CJD 04-04 is an abuse of
discretion. Two divisions of this court have already so concluded.
Stroud, ¶ 12; People v. Orozco, 210 P.3d 472, 476 (Colo. App. 2009).
In both cases, the defendants were indigent and represented by
private counsel. Stroud, ¶ 10; Orozco, 210 P.3d at 474. Each
defendant requested state-funded expert witness services. Stroud,
¶ 10; Orozco, 210 P.3d at 474. And each trial court denied the
requests under the mistaken belief that they had no authority to
grant the requested state-funded services. Stroud, ¶ 11; Orozco,
210 P.3d at 475. On appeal, separate divisions of this court held
that the denial of the requested services without considering CJD
04-04 was an abuse of discretion. Stroud, ¶ 12; Orozco, 210 P.3d at
476. Because each defendant continued with his private attorney,
this court reviewed the denial of the requested support services for
constitutional harmless error. Stroud, ¶ 14; Orozco, 210 P.3d at
476. In Stroud, the error was constitutionally harmless. Stroud,
¶ 17. In Orozco, it was not, and the defendant’s convictions for
incest and sexual assault on a child were reversed. Orozco, 210
P.3d at 477.
108 ¶ 242 Consider then Mr. Lane’s statements to the trial court that:
(1) he was Mr. Thompson’s retained counsel;3 (2) he had been
representing Mr. Thompson “for about two years”; (3) Mr.
Thompson was indigent but wanted Mr. Lane to continue
representing him; (4) he would continue to represent Mr.
Thompson; but (5) in order to do so effectively, he needed the court
to authorize state-funded support services. These statements
should have alerted the trial court that CJD 04-04 was at play and
that it allowed the court to consider — and, if appropriate, to
authorize — Mr. Lane’s request for state-funded services.
¶ 243 True, neither Mr. Lane nor the prosecution brought CJD
04-04 to the trial court’s attention. But that was also true in Stroud
and implied in Orozco. See Stroud, ¶ 12 (acknowledging the parties
did not bring CJD 04-04 to the court’s attention); Orozco, 210 P.3d
at 475 (concluding that the trial court was mistaken that “no
mechanism existed under the law to provide the necessary funds”
for state-funded expert witness services). Put simply, the
conclusion that the trial court abused its discretion is no different
3Although Mr. Lane used the word “retained,” the parties agree that Mr. Lane was representing Mr. Thompson pro bono.
109 here than it was in Stroud and Orozco. See People v. Darlington,
105 P.3d 230, 232 (Colo. 2005) (The “failure to exercise discretion is
itself an abuse of discretion.”); accord DeBella v. People, 233 P.3d
664, 668 (Colo. 2010).4
¶ 244 I am tempted to agree with my respected specially concurring
colleague’s conclusion that Mr. Lane invited any error in framing
the issue the way he did. But for two reasons, I can’t. First, Mr.
Lane did not affirmatively misstate the law. His summary of
Cardenas was accurate. The most I can glean from the record is
that he was either unaware of CJD 04-04 or neglected to raise it.
But errors of omission are reviewable under Crim. P. 52(b). See
People v. Gross, 2012 CO 60M, ¶ 16 (stating that errors resulting
from the attorney’s “oversight or inadvertent omission” are not
precluded under the invited error doctrine but are reviewed for
plain error); People v. Foster, 2013 COA 85, ¶¶ 34-40
4 Had the trial court recognized its discretion, it could have then considered whether Mr. Lane’s general request was sufficient to show that the requested support services were reasonable, necessary, and helpful to the defense. See People v. Mossmann, 17 P.3d 165, 171 (Colo. App. 2000). Given that the court did not recognize or exercise its discretion, I cannot agree with the People that because Mr. Lane’s showing was insufficient the trial court did not abuse its discretion.
110 (distinguishing between errors of commission and those of omission
and concluding the latter are reviewable for plain error).
¶ 245 Second, defense counsel’s inadvertence or ignorance of the law
does not relieve a trial court from knowing and applying the law.
People v. White, 870 P.2d 424, 440 (Colo. 1994) (“Trial judges are
decisions.”) (citation omitted); see also People v. Lara, 103 Cal. Rptr.
2d 201, 220 (Cal. Ct. App. 2001) (Absent some evidence of
deliberate trial tactics, “[e]ven in the context of invited error, . . . the
trial court rather than defense counsel has the ultimate duty to
apply the correct law.”). Because Chief Justice Directives are an
expression of judicial branch policy and must be “given full force
and effect in matters of court administration,” Hodges v. People,
158 P.3d 922, 926 (Colo. 2007), I presume too that trial courts
know what the directives say. As well, an attorney’s ignorance or
inadvertence should not excuse a trial court from knowing the
scope of its discretion. See, e.g., Stroud, ¶ 12; Orozco, 210 P.3d at
476.
¶ 246 One final observation. Although my specially concurring
colleague questions the Chief Justice’s authority to issue CJD
111 04-04 section V(D), the People did not initially mount a
constitutional — or any — challenge to the legality of CJD 04-04.5
Because no party raised or argued that the CJD violates separation
of powers principles (or is inconsistent with section 18-1-403),
either at trial or in the original appellate briefs, I would reserve
consideration of such issues for another case and another time.6
E.g., People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985) (It is
“[a]xiomatic to the exercise of judicial authority . . . that a court
should not decide a constitutional issue unless and until such
issue is actually raised by a party to the controversy and the
necessity for such decision is clear and inescapable.”); People v.
Bondsteel, 2015 COA 165, ¶ 30 (cert. granted Oct. 31, 2016) (same).
5 After oral argument, and on its own initiative, this court invited the parties to respond to a limited inquiry about CJD 04-04. 6 Because the parties did not raise the issue, the record leaves
unanswered questions such as: (1) What funds are used to pay support services? (2) If paid with judicial department funds, are those funds general funds? (3) If so, are funds paid for state-funded support services reasonable and necessary to carry out the judicial department’s mission? (4) If they are reasonable and necessary, then what is the impact of our supreme court’s conclusion that in a separation of powers battle involving the payment “of those sums of money which are reasonable and necessary to carry out its mandated responsibilities[,]” the judiciary wins? See Pena v. Dist. Court, 681 P.2d 953, 956-57 (Colo. 1984).
112 ¶ 247 At the end of it all, the trial court’s misapprehension of its
authority to consider and authorize state-funded support services
effectively resulted in a deprivation of Mr. Thompson’s counsel of
choice. The only remaining question is whether the court’s error
requires reversal.
II. Deprivation of Mr. Thompson’s Counsel of Choice
¶ 248 The Sixth Amendment right to counsel, along with the right to
counsel of one’s choice, form the “root meaning of the constitutional
guarantee” of the Sixth Amendment. Gonzalez-Lopez, 588 U.S. at
147-48. When a defendant is deprived of these rights, no further
showing of prejudice is necessary — the deprivation of counsel of
one’s choice is the loss of a constitutional right. See id. at 148; see
also Anaya v. People, 764 P.2d 779, 783 (Colo. 1988).
¶ 249 I, of course, agree that an indigent defendant does not have
the same range of choices as a defendant who can pay. For
instance, an indigent defendant may not insist on representation by
an attorney that he cannot afford or who declines to represent him.
Wheat v. United States, 486 U.S. 153, 159 (1988). Nor may an
indigent defendant select his court-appointed counsel. E.g.,
Gonzalez-Lopez, 548 U.S. at 151. Once an indigent defendant has
113 obtained counsel, however, the defendant’s choice of continued
representation by appointed counsel is “afforded great weight.”
People v. Nozolino, 2013 CO 19, ¶ 17; accord Rodriguez v. Dist.
Court, 719 P.2d 699, 707 (Colo. 1986); see also Williams v. Dist.
Court, 700 P.2d 549, 555 (Colo. 1985) (“[Indigent defendants] are
entitled to continued and effective representation by court
appointed counsel . . . .”); People v. Isham, 923 P.2d 190, 193 (Colo.
App. 1995) (“When counsel is retained, there is a presumption in
favor of a defendant’s choice of counsel.”).
¶ 250 But what happens when an indigent defendant secures private
counsel at no cost to the state? More to the point, does the Sixth
Amendment right to counsel of choice attach? I think so. Once the
parties enter an attorney-client relationship, I see no material
difference between an indigent defendant and one who can pay.
See Ingram v. Justice Court, 447 P.2d 650, 655 (Cal. 1968) (“[O]nce
counsel is appointed or undertakes to represent an indigent
defendant, whether it be the public defender or a volunteer private
attorney, the parties enter into an attorney-client relationship which
is no less inviolable than [if] counsel had been retained.”) (citation
omitted). The attorney-client relationship is real even if the
114 defendant is impoverished. And in such a scenario, the indigent
defendant’s choice of counsel has the same constitutional
significance as a defendant with the ability to pay. I can’t reconcile
a different outcome with the Supreme Court’s declaration that “the
Sixth Amendment guarantees a defendant the right to be
represented by an otherwise qualified attorney . . . who is willing to
represent the defendant even though he is without funds.” Caplin
& Drysdale, Chartered v. United States, 491 U.S. 617, 624-25
(1989); accord Gonzalez-Lopez, 548 U.S. at 144. Taking that
statement at face value, I conclude that if a private attorney agrees
to represent an indigent defendant pro bono, the Sixth Amendment
right to counsel of choice attaches.
¶ 251 And in this view, I do not stand entirely alone. See Robinson v.
Hotham, 118 P.3d 1129, 1133 (Ariz. Ct. App. 2005) (concluding that
where an indigent defendant is able to obtain representation by
non-publicly funded counsel, he possesses “rights under the Sixth
Amendment”); English v. Missildine, 311 N.W.2d 292, 294 (Iowa
1981) (“[N]o reason exists for depriving an indigent of the same right
of choice [of counsel] as a person of means when the indigent is
able to obtain private counsel without public expense.”); State v.
115 Sims, 968 So. 2d 721, 722 (La. 2007) (“The right to private, non-
appointed counsel of choice does not distinguish between a paid
attorney and a pro bono lawyer.”); State v. Jones, 707 So. 2d 975,
977 (La. 1998) (same); State v. Brown, 134 P.3d 753, 759 (N.M.
2006) (“[A]n indigent defendant represented by pro bono counsel, is
entitled . . . to the constitutional right to counsel.”); accord Moore v.
State, 889 A.2d 325, 349-366 (Md. 2005) (Bell, C.J., dissenting).
¶ 252 Because the trial court misapprehended its discretionary
authority to award state-funded support services, Mr. Lane
discontinued his representation of Mr. Thompson. The court’s error
therefore effectively denied Mr. Thompson his Sixth Amendment
right to his counsel of choice. The United States Supreme Court
tells us that this error is structural and requires reversal.
Gonzalez-Lopez, 548 U.S. at 150.
¶ 253 Make no mistake; I recognize the evidence overwhelmingly
showed that Mr. Thompson horribly abused these children and that
he conspired with Ms. Lowe to commit the crimes of which he was
convicted. The Sixth Amendment to the United States Constitution,
however, applies not just to the innocent.
116 ¶ 254 Knowing that under my analysis a retrial would be necessary
and that many of Mr. Thompson’s remaining issues would likely
arise on remand, I otherwise agree in full with my colleagues’
considered resolution of those issues.
¶ 255 From Part II of the majority opinion, I respectfully dissent.
Related
Cite This Page — Counsel Stack
2017 COA 56, 413 P.3d 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-thompson-coloctapp-2017.