The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY August 8, 2019
2019COA124
No. 16CA0076, People v. Thames — Constitutional Law — Fifth Amendment — Fourteenth Amendment — Presumption of Innocence; Evidence — Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
This is the first reported Colorado decision that addresses
whether a trial court violates a defendant’s right to be presumed
innocent when it permits the prosecution to show the jury a video of
the defendant wearing a prison uniform. A division of the court of
appeals concludes that the presumption of innocence was not
violated in this instance. In reaching this conclusion, the division
relies on cases from other jurisdictions holding that the risk of
prejudicing the defendant due to his clothing is not present when
the jury is shown a video depicting the defendant in a prison
uniform. COLORADO COURT OF APPEALS 2019COA124
Court of Appeals No. 16CA0076 Mesa County District Court No. 12CR517 Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Douglas Thames,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE LIPINSKY Román and J. Jones, JJ., concur
Announced August 8, 2019
Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Alan M. Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Douglas Thames, was the second person convicted
for the sexual assault and murder of J.T. Nineteen years earlier, a
jury had convicted Robert Dewey for the same crimes. The
prosecution’s case against Dewey had included testimony that his
DNA could have been present at the site of the murder. Because of
the state of DNA testing at the time, however, those test results did
not indicate the likelihood that the DNA recovered at the crime
scene matched that of Dewey.
¶2 Fifteen years after Dewey’s conviction, DNA testing using an
improved technology known as STR (Short Tandem Repeat) revealed
that Thames’s DNA was present on objects found at the crime scene
and under J.T.’s fingernails. The STR tests showed there was only
a one in seven sextillion chance that the match to Thames was
random.
¶3 As a result of the new DNA tests, Dewey was exonerated and
released from prison. The same tests led to the filing of charges
against Thames. A jury convicted Thames of first degree murder
after deliberation, first degree felony murder, and first degree sexual
assault.
1 ¶4 Thames contends on appeal that the trial court erred in not
allowing him to introduce evidence of Dewey’s conviction or the
DNA test results (the Results) presented at Dewey’s trial. Thames
also contends that the trial court erred in permitting the prosecutor
to comment on his silence during a video-recorded interrogation
(the Interrogation). He further contends that the trial court should
not have permitted the jury to view the video of the Interrogation
because it showed him wearing prison garb. Thames also argues
that the cumulative effect of these errors requires reversal. Lastly,
he argues that the trial court violated his right to be free from
double jeopardy by imposing mandatory statutory surcharges and
costs (the Surcharges) outside his presence after sentencing.
¶5 We affirm but remand with instructions to allow Thames the
opportunity to argue that he is entitled to a statutory waiver of the
Surcharges.
I. Facts and Procedural History
¶6 A neighbor discovered J.T.’s body in the bathtub of her
apartment. J.T. had been beaten, sexually assaulted, and strangled
to death with a dog leash. Pieces of soap had been inserted into her
vagina.
2 ¶7 Dewey was an initial suspect. Police arrested him after DNA
testing revealed the possibility that J.T.’s blood was on one of his
shirts. As noted, a jury convicted Dewey for J.T.’s sexual assault
and murder in 1996.
¶8 In 2011, new DNA testing exonerated Dewey. The testing
revealed the presence of Thames’s DNA on the leash and
underneath J.T.’s fingernails, among other locations.
¶9 After reviewing the new DNA results, law enforcement officers
interrogated Thames regarding the murder of J.T. At the time of the
Interrogation, Thames was incarcerated for an unrelated offense.
The People then charged Thames with first degree murder after
deliberation, first degree felony murder, and first degree sexual
¶ 10 Thames challenged the admissibility of his statements during
the Interrogation on the grounds that he had not knowingly and
intelligently waived his right against self-incrimination. The trial
court granted Thames’s motion to suppress his statements. The
Colorado Supreme Court reversed. People v. Thames, 2015 CO 18,
¶¶ 27-28, 344 P.3d 891, 898.
3 ¶ 11 At trial, Thames pursued an alternative suspect defense,
arguing that Dewey had sexually assaulted and killed J.T. (Thames
presented evidence that other individuals may also have committed
the crimes. Evidence concerning those alternative suspects is
irrelevant to this appeal.) After a four-week trial, the jury found
Thames guilty on all counts.
¶ 12 On the murder counts, the trial court sentenced Thames to a
term of life imprisonment in the custody of the Department of
Corrections without the possibility of parole. The court further
sentenced him to forty-eight years imprisonment on the sexual
assault count. The court did not impose any surcharges or costs at
the sentencing hearing.
II. The Trial Court Did Not Abuse Its Discretion by Refusing to Admit Evidence of Dewey’s Conviction
¶ 13 Thames contends that the trial court violated his
constitutional right to present a defense by refusing to admit
evidence that a jury had previously convicted Dewey of the same
crimes with which Thames was charged. We discern no error.
4 A. Standard of Review
¶ 14 We review a trial court’s ruling on evidentiary issues, including
the admission of alternative suspect evidence, for an abuse of
discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial
court abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or is based on an erroneous view of the
law. People v. Elmarr, 2015 CO 53, ¶ 20, 351 P.3d 431, 438.
B. Law Governing Admission of Alternative Suspect Evidence
¶ 15 “Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants ‘a meaningful opportunity to
present a complete defense.’” Holmes v. South Carolina, 547 U.S.
319, 324 (2006) (citations omitted); see also People v. Salazar, 2012
CO 20, ¶ 17, 272 P.3d 1067, 1071. A criminal defendant is entitled
to all reasonable opportunities to present evidence that might tend
to create doubt as to his guilt. Elmarr, ¶ 26, 351 P.3d at 438.
¶ 16 However, the right to present a defense is generally subject to,
and constrained by, familiar and well-established limits on the
admissibility of evidence. Id. at ¶ 27, 351 P.3d at 438. The
5 admissibility of alternative suspect evidence depends on the
strength of the connection between the alternative suspect and the
charged crime. Id. at ¶ 22, 351 P.3d at 438.
¶ 17 To be admissible, alternative suspect evidence must be
relevant under CRE 401 and its probative value must not be
substantially outweighed by the danger of confusion of the issues or
misleading the jury, or by considerations of undue delay under CRE
403. Elmarr, ¶ 22, 351 P.3d at 438. But a defendant does not have
the right to “present all the evidence he wishes or do so in the
manner he chooses.” People v. Saiz, 32 P.3d 441, 449 (Colo. 2001)
(citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
A trial court retains the discretion to assess the incremental probative value of evidence offered by a criminal defendant and to exclude even logically relevant evidence that would be more wasteful of time, confusing, or misleading than helpful to the jury. . . . [I]t may not abdicate its responsibility to guard against prejudice and promote judicial efficiency by excluding evidence that is insufficiently probative to assist in the search for truth.
Id.
6 C. The Trial Court Did Not Abuse Its Discretion by Limiting the Evidence Implicating Dewey as an Alternative Suspect
¶ 18 To support his argument that the trial court should have
admitted evidence of Dewey’s conviction, Thames relies on the
reasoning in Gore v. State, 119 P.3d 1268 (Okla. Crim. App. 2005).
There, the Oklahoma Court of Criminal Appeals held that the
defendant was entitled to present evidence that another individual,
Williamson, had been convicted of the same murder for which the
defendant was later charged. Id. at 1276. The appellate court
reasoned that the evidence — which included Williamson’s
statement that he had dreamed of killing the victim, testimony by
law enforcement officers and inmates who overheard Williamson
admit to the crime, and statements by individuals that the victim
had said Williamson had asked her out but she did not want to date
him — was relevant in that it bore on the defendant’s guilt or
innocence. Id. The court held that, by excluding this evidence, the
trial court had deprived the defendant of his constitutional right to
present a defense. Id. at 1277.
7 ¶ 19 Gore, however, is distinguishable. In this case, the trial court
allowed Thames to present evidence pointing to Dewey as an
alternative suspect.
¶ 20 The trial court at first excluded evidence of Dewey’s trial and
conviction. But, in the initial part of the trial, the court allowed
Thames to present other evidence that Dewey had sexually
assaulted and murdered J.T., including the following:
• Dewey spent a significant amount of time at J.T.’s
apartment before she died.
• After J.T. kicked Dewey out of her apartment, Dewey said
he was “going to get” J.T.
• Dewey stayed in an apartment near J.T.’s on the night
J.T. was sexually assaulted and murdered, but left that
apartment in the middle of the night.
• Dewey hid in a closet after police arrived at his
apartment complex on the morning J.T.’s body was
discovered.
After the jury had heard this evidence, the court reversed itself and
ruled that the prosecution had opened the door to the introduction
of evidence of Dewey’s trial. Thames contends that, although the
8 jury heard substantial evidence suggesting that Dewey was the
murderer, the trial court erred by not permitting him to tell the jury
that Dewey had been convicted of the crimes.
¶ 21 While evidence of Dewey’s conviction may have been relevant
because it provided a strong logical connection between Dewey and
the sexual assault and murder of J.T., we conclude that the trial
court did not abuse its discretion in refusing to admit evidence of
the conviction under CRE 403. Saiz, 32 P.3d at 446, 449. Unlike
the defendant in Gore, Thames was able to implicate Dewey in the
crimes by repeatedly emphasizing Dewey’s behavior both before and
after the discovery of J.T.’s body. And, as the trial court held, any
probative value of Dewey’s conviction was substantially outweighed
by the danger that the jury would have “speculate[d] about why a
different jury convicted Mr. Dewey” and conflated the issues
between Dewey’s trial and Thames’s trial.
¶ 22 Further, introducing evidence of the conviction would have
extended Thames’s trial. CRE 403; see Elmarr, ¶ 31, 351 P.3d at
439 (court must weigh probative value of alternative suspect
evidence against danger of undue delay). After Thames presented
evidence of Dewey’s conviction, the People would have had an
9 opportunity to introduce evidence of Dewey’s exoneration. This
evidence could have involved extensive testimony regarding the
advances in DNA technology between the time of Dewey’s trial and
his exoneration.
¶ 23 Thus, we conclude that the trial court did not abuse its
discretion in excluding evidence of Dewey’s conviction. (Because we
resolve this issue under CRE 403, we need not address the
unbriefed question of whether, under section 13-65-103(7)(a),
C.R.S. 2018, Dewey’s conviction became a legal nullity upon his
exoneration and, therefore, was not a past conviction. Our opinion
should not be read as holding that an expunged conviction has, or
does not have, legal significance.)
III. The Prosecutor Commented on Thames’s Demeanor While Answering Questions During the Interrogation and Not on His Silence
¶ 24 Thames next contends that, in closing argument, the
prosecutor improperly commented on his silence during the
Interrogation. We do not agree because the prosecution commented
on the manner in which Thames answered the officers’ questions
during the Interrogation, and not on Thames’s failure to speak.
10 A. Standard of Review
¶ 25 We review de novo whether the prosecutor impermissibly
commented on a defendant’s right to remain silent. See People v.
Ortega, 2015 COA 38, ¶ 8, 370 P.3d 181, 184 (“‘[W]here
constitutional rights are concerned,’ law application ‘is a matter for
de novo appellate review.’” (quoting People v. Matheny, 46 P.3d 453,
462 (Colo. 2002))).
B. The Prosecution’s Closing Argument
¶ 26 During closing arguments, the prosecutor played clips from
the video of the Interrogation, which the jury had seen during the
trial. The prosecutor reminded the jury that the officers had not
told Thames in advance why they were there and asked the jurors
to “judge [Thames’s] statements in that context.”
¶ 27 The prosecutor said that, in the video, “[Thames] has a total
lack of reaction to being accused of [J.T.’s] murder,” and that the
jurors “can judge it” for themselves. The prosecutor then said,
I say it’s a total lack of reaction. No real emotion, no anger. Hey, why are you accusing me of this? What would an innocent person say when confronted with another persons’ [sic] murder?
11 It would be outrage. It would be defiant [sic]. They would be screaming to the heavens I’m innocent. How can you accuse me of this? He wasn’t. No indignation, no surprise. No surprise that they’re accusing him of murder.
It says yeah, he’s been waiting 18 years for this interview to happen. That’s the only way you can explain it. No connection to J.T. and yet he remembers the night 18 years later.
We’ve been over this. He’s accused of murder and yet he shows no surprise and/or indignity.
Defense counsel moved for a mistrial, asserting that these
comments violated Thames’s right to remain silent. The trial court
denied the motion.
¶ 28 The prosecutor then played additional clips of the
Interrogation. The prosecutor argued that Thames’s reaction to the
officer’s questions whether he had any remorse about J.T.’s murder
was “[n]o indignation, no surprise, no hostility, no anger . . . .”
¶ 29 After playing another clip, the prosecutor said,
He’s confronted with all these pieces of DNA being at the crime scene and he’s just nodding. He’s given out to say yeah, I was having a relationship with her.
That’s why my DNA is over there. They were begging him to give them something else. Some other reason not to think he’s the murderer and he doesn’t give it to them.
12 In fact, his reaction again is not consistent with anything close to being a normal reaction. It is very abnormal and we would submit it is indicative of his guilt.
He is trying to be too cool about being confronted with this. He doesn’t know how to react. A normal reaction is one of anger, frustration, surprise, shock.
You can name the adjective he doesn’t give us because he’s calculating what he should be reacting, and he doesn’t want to show too much. You can draw your own inferences from this, but this is a very abnormal reaction.
¶ 30 After the prosecutor’s closing argument, defense counsel
renewed the earlier motion for a mistrial. The court again denied
the motion.
C. Law Governing Comments on a Defendant’s Demeanor
¶ 31 A defendant is constitutionally protected against self-
incrimination and has the right to remain silent. People v. Herr,
868 P.2d 1121, 1124 (Colo. App. 1993). Accordingly, a prosecutor
may not allude to a defendant’s silence as indicating a
consciousness of guilt. People v. Ortega, 198 Colo. 179, 182, 597
P.2d 1034, 1036 (1979) (finding prosecutor’s comment that
“defendant’s statement to the Sheriff didn’t include a protestation of
13 innocence” was reversible error). Such a comment “effectively
penalizes the defendant for exercising a constitutional privilege.” Id.
¶ 32 But a prosecutor may comment on the defendant’s demeanor
while testifying, particularly because jurors receive an instruction
that they may consider courtroom demeanor in assessing a
witness’s credibility. See United States v. Gooch, 506 F.3d 1156,
1160-61 (9th Cir. 2007); People v. Constant, 645 P.2d 843, 846
(Colo. 1982) (“[A] prosecutor may draw reasonable inferences as to
the demeanor and credibility of witnesses. Based upon the facts of
this case, the prosecution’s argument is consistent with the
instruction to the jury which permits the jury to consider the
demeanor of witnesses for credibility purposes.”); cf. People v.
Walters, 148 P.3d 331, 336 (Colo. App. 2006) (stating that the
prosecution may not argue that jurors should discuss among
themselves whether, like the prosecutor, they saw the defendant
laughing and smiling following the victim’s trial testimony).
¶ 33 There is no meaningful distinction between the prosecution’s
commentary on a defendant’s demeanor while testifying in the
courtroom and commentary on a defendant’s demeanor while
answering questions during a video-recorded interrogation that the
14 jurors viewed during trial. A jury may consider the manner in
which a defendant answered questions during an interrogation.
See Rothgeb v. United States, 789 F.2d 647, 650-51 (8th Cir. 1986).
In Rothgeb, a state trooper was allowed to tell the jury that the
defendant had held his breath, “pant[ed] like a dog,” and sweated
profusely while answering questions about the killings of his wife
and child. Id. at 650. “[E]vidence concerning a defendant’s
demeanor during the questioning is . . . admissible . . . .” Id. at
651; see also People v. Vaughn, No. 3-12-0996, 2015 WL 5451332,
at *9 (Ill. App. Ct. Sept. 15, 2015) (unpublished opinion) (finding no
prosecutorial misconduct when the prosecutor commented on the
defendant’s demeanor during recorded interviews shown to the jury
because “[t]he jury was free to make whatever reasonable inferences
it chose to make based upon the evidence”).
D. The Prosecutor’s Closing Argument Properly Commented on Thames’s Demeanor During the Interrogation
¶ 34 We conclude that the prosecutor did not comment on
Thames’s silence during the interview. Rather, the comments were
a permissible reference to Thames’s demeanor during the
Interrogation. See Rothgeb, 789 F.2d at 650-51.
15 ¶ 35 Thames did not sit quietly when questioned during the
Interrogation. He answered the investigators’ questions and
repeatedly maintained his innocence, but without any display of
emotion or anger. Using the same tone of voice, he said he did not
know why investigators had found his DNA in J.T.’s apartment,
denied ever having been in the apartment, denied ever meeting or
seeing J.T., denied ever having sex with J.T., and said he was
partying at another location at the time of the murder.
¶ 36 The prosecutor’s argument thus rested on how Thames denied
his involvement in J.T.’s sexual assault and murder, and not on
Thames’s silence in response to questions regarding his role in the
crimes.
¶ 37 While the prosecutor did note that an innocent person “would
be screaming to the heavens I’m innocent” if accused of murder, the
prosecutor’s argument focused on Thames’s tone of voice and lack
of “real emotion [or] anger” during the questioning. The words the
prosecutor used — “screaming,” “outrage,” “defian[ce],”
“indignation,” “surprise,” “indignity,” “anger,” “frustration,” and
“shock” — highlighted Thames’s flat affect during the Interrogation.
The prosecutor urged the jurors to recall Thames’s “total lack of
16 reaction” and “cool” demeanor, and not his silence in responding to
the officers’ questions, in the video the jurors had seen.
¶ 38 In contrast, Ortega concerned a law enforcement officer’s
testimony regarding the defendant’s questioning following his arrest
for first degree trespass and felony theft of tools from a truck. See
Ortega, 198 Colo. at 181, 597 P.2d at 1035. The defense argued
that the defendant had merely intended to remove the items from
the truck for safekeeping after the property owner had been
involved in an accident.
¶ 39 The prosecutor argued in closing that the defendant had had
an opportunity to explain, but had failed to say, during his
interrogation that he had merely attempted to safeguard the
property. Id. In rebuttal closing, the prosecutor rhetorically asked
why the defendant’s statement had not included a protestation of
innocence. See id. at 181-82, 597 P.2d at 1035-36.
¶ 40 The supreme court held that these statements were an
improper commentary on the defendant’s exercise of his right to
remain silent because they “expressly directed the jury to consider,
as evidence of the defendant’s guilt, his failure to protest his
innocence or to offer an exculpatory statement.” Id. at 183, 597
17 P.2d at 1037; see United States v. Velarde-Gomez, 269 F.3d 1023,
1030-33 (9th Cir. 2001) (holding that prosecutor’s argument
regarding the defendant’s lack of response when confronted with
evidence against him violated the defendant’s privilege against self-
incrimination and was not merely commentary on his demeanor);
People v. Welsh, 58 P.3d 1065, 1071 (Colo. App. 2002) (“[T]he use of
pre-arrest silence when the defendant does not testify
impermissibly burdens the privilege guaranteed by the Fifth
Amendment and thus is inadmissible in the prosecution’s case-in-
chief as substantive evidence of guilt or sanity.”), aff’d, 80 P.3d 296
(Colo. 2003).
¶ 41 Unlike the impermissible arguments in Ortega, Velarde-Gomez,
and Welsh, the prosecutor in this case did not comment on
Thames’s silence because Thames was not silent during the
Interrogation. As the jurors saw for themselves when they watched
the video, Thames responded to the investigators’ questions and
denied having sexually assaulted or killed J.T. The prosecutor
focused on the manner in which Thames answered those questions.
For this reason, we conclude that the prosecutor did not
impermissibly comment on Thames’s silence in violation of his right
18 against self-incrimination. See Gooch, 506 F.3d at 1160-61;
Constant, 645 P.2d at 847.
IV. The Trial Court Did Not Err by Permitting the Jury to View the Video of the Interrogation
¶ 42 Thames next argues that the trial court erred in permitting the
jury to view the video of the Interrogation because it depicted him
wearing a prison uniform. We do not agree.
A. Standard of Review
¶ 43 A reviewing court may not reverse a trial court’s decision to
admit or exclude evidence absent a showing that the trial court
abused its discretion. People v. Gibbens, 905 P.2d 604, 607 (Colo.
1995); People v. Dist. Court, 869 P.2d 1281, 1285 (Colo. 1994).
When reviewing a trial court’s admission of evidence in light of the
balancing test of CRE 403, an appellate court must assign to the
evidence the maximum probative value and the minimum unfair
prejudice that a reasonable fact finder might attribute thereto.
Gibbens, 905 P.2d at 607. To overcome this presumption in favor of
the trial court’s ruling, the defendant must demonstrate that the
decision was “manifestly arbitrary, unreasonable, or unfair.” People
19 v. Ibarra, 849 P.2d 33, 38 (Colo. 1993); see also People v.
Czemerynski, 786 P.2d 1100, 1108 (Colo. 1990).
B. Law Governing the Presumption of Innocence
¶ 44 The Fourteenth Amendment to the United States Constitution
guarantees defendants in state criminal cases the right to a fair
trial. Estelle v. Williams, 425 U.S. 501, 503 (1976). And the
presumption of innocence is “a basic component of a fair trial under
our system of criminal justice.” Id.
¶ 45 That presumption “is directly undermined when the defendant
is required to appear before the jury in visible restraints or prison
clothes.” People v. Knight, 167 P.3d 147, 153-54 (Colo. App. 2006).
“Thus, the Fifth and Fourteenth Amendments prohibit the use of
physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are
justified by a state interest specific to a particular trial.” Deck v.
Missouri, 544 U.S. 622, 629 (2005).
C. Showing the Jury the Video of the Interrogation Did Not Violate the Presumption of Innocence
¶ 46 Thames contends that publication of the video of the
Interrogation invited the jury to speculate about his criminal history
20 because of his attire. (For purposes of this analysis, we assume the
jury believed Thames was wearing a prison uniform during the
Interrogation, although the People contest this factual issue. The
video showed him wearing green scrubs.) Thames asserts that this
possible speculation denied him the presumption of innocence
afforded to criminal defendants. We disagree.
¶ 47 More importantly, Thames has not alerted us to, nor are we
aware of, any Colorado case holding that a court violates the
presumption of innocence by allowing the jury to view a video
showing the defendant attired in prison garb. The presumption of
innocence is undermined only “when the defendant is required to
appear before the jury in visible restraints or prison clothes.”
Knight, 167 P.3d at 153 (emphasis added).
¶ 48 Allowing the jury to see a defendant in prison clothing during
trial is problematic because
the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable
21 risk is presented of impermissible factors coming into play.
Williams, 425 U.S. at 504-05. “[E]very defendant is entitled to be
brought before the court with the appearance, dignity, and self-
respect of a free and innocent man, except as the necessary safety
and decorum of the court may otherwise require.” Eaddy v. People,
115 Colo. 488, 491-92, 174 P.2d 717, 718-19 (1946) (holding that a
defendant cannot be compelled to wear prison clothing “throughout
his trial”).
¶ 49 The risk of prejudicing the defendant due to his clothing is not
present when the jury is shown a video depicting the defendant in a
prison uniform. See Ritchie v. State, 875 N.E.2d 706, 718 (Ind.
2007) (explaining that “[t]he concerns with having a criminal
defendant appear in jail clothing or shackles in a courtroom
proceeding are not directly applicable” to a video of the defendant’s
police interview). As another court pointed out:
While it is easy to understand how viewing a defendant in handcuffs and jail clothing during trial might risk diluting the presumption of innocence, the same cannot be said about exposure to a video showing the defendant in jail clothing and handcuffs during an interview prior to trial. . . . [M]ost jurors would not be surprised by the fact that a defendant was
22 handcuffed and wearing jail clothing while in jail prior to trial.
Bramlett v. State, 422 P.3d 788, 794 (Okla. Crim. App. 2018).
¶ 50 Unlike the visual impact of a defendant’s attire throughout a
trial, the clothing shown in a video lasting one hour and fourteen
minutes will not be a “constant reminder” of the defendant’s
condition or create a prejudicial, continuing influence in jurors’
minds. Nelson v. Cain, No. CIV. A. 13-4998, 2014 WL 2859147, at
*18 (E.D. La. June 23, 2014); see Thames, ¶ 3, 344 P.3d at 893-94
(noting that Thames’s interrogation lasted one hour and fourteen
minutes).
¶ 51 Thames does not contend that the trial court required him to
appear in the courtroom in visible restraints or prison clothes.
Rather, in the video, he is not restrained, is not handcuffed, and is
depicted seated in what appears to be a conference room with
pictures on the wall. Under these circumstances, Thames was not
deprived of his right to have the jury presume him innocent.
Knight, 167 P.3d at 153.
¶ 52 To the extent Thames argues that our decision should be
different because the prosecution modified the video of the
23 Interrogation to blur his prison identification badge and thereby
improperly highlighted his incarceration, we are not persuaded.
Even if the blurred badge drew the jurors’ attention to Thames’s
prison clothing, the trial court did not require him to appear in the
courtroom in a prison uniform. Id. Without this element, the
presumption of innocence remained intact. Id.
¶ 53 Thus, we conclude that the trial court did not violate Thames’s
right to be presumed innocent when it allowed the jury to view the
video of the Interrogation.
V. The Trial Court’s Refusal to Admit Evidence of the Results Was Harmless
¶ 54 Thames next contends that the trial court violated his right to
present a defense by refusing to admit the Results. We need not
decide whether the court erred in this regard because we conclude
that any error in the trial court’s refusal to admit this evidence does
not require reversal.
A. Testimony About the Results
¶ 55 The prosecution filed a pretrial motion pursuant to section
16-3-309(5), C.R.S. 2018, to require in-person testimony to lay the
foundation for admission of any laboratory reports on which
24 Thames might rely at trial. Yvonne Woods, a Colorado Bureau of
Investigation analyst, testified on cross-examination that she had
examined the Results, which a company called GeneScreen had
prepared years before, when she had conducted her own analysis of
the DNA evidence. She testified that the Results indicated “there
could be some blood from J.T.” on Dewey’s shirt. She said that she
had performed her own DNA testing on different sections of the
shirt.
¶ 56 Defense counsel then moved to admit the Results. The
prosecutor objected, arguing that Woods had not conducted the
tests that produced the Results, as required under section
16-3-309(5). The court ruled that, pursuant to the statute, the
Results were inadmissible without the testimony of the analyst who
had performed the underlying tests. Defense counsel filed a motion
for a continuance to locate the analyst, which the trial court denied.
¶ 57 Defense counsel then attempted to admit the Results through
the testimony of the detective who had arrested Dewey. The trial
court again ruled the Results inadmissible under section
16-3-309(5).
25 B. Standard of Review
¶ 58 We review a trial court’s admission of testimony for an abuse
of discretion. Ibarra, 849 P.2d at 38. A trial court abuses its
discretion if its decision “was manifestly arbitrary, unreasonable, or
unfair.” Id.
¶ 59 An erroneous evidentiary ruling may constitute constitutional
error if it deprives a defendant of, among other things, his right to
present a defense. People v. Beilke, 232 P.3d 146, 149 (Colo. App.
2009). A defendant’s right to present a defense, however, is violated
“only where the defendant was denied virtually his only means of
effectively testing significant prosecution evidence.” Krutsinger v.
People, 219 P.3d 1054, 1062 (Colo. 2009). Thus, when an
evidentiary limitation does not deprive a defendant of his sole
means of testing the prosecution’s evidence, reversal is required
only if any error substantially influenced the verdict or affected the
fairness of the trial. Id. at 1064.
C. Law Governing the Admission of Laboratory Results
¶ 60 Evidence rules that “infring[e] upon a weighty interest of the
accused” and are “‘arbitrary’ or ‘disproportionate to the purposes
they are designed to serve’” may violate a defendant’s constitutional
26 rights. Holmes, 547 U.S. at 324 (citation omitted). However, the
Constitution requires only that the accused be permitted to
introduce all relevant and admissible evidence. People v. Harris, 43
P.3d 221, 227 (Colo. 2002).
¶ 61 Colorado law limits the admissibility of laboratory results in
certain circumstances. To permit the admission of laboratory
results, a party can require the in-person testimony of the
individual who conducted the tests that produced the results.
§ 16-3-309(5). (The statute expressly applies only to persons who
testify “on behalf of the state.” Id. But we decide this issue on
grounds other than the trial court’s erroneous application of the
statute to a witness who testified on behalf of the defense.)
D. Any Error Was Harmless
¶ 62 Thames raises several arguments regarding the Results. But
we need only address his contention that, by refusing to admit the
Results, the trial court deprived him of a meaningful opportunity to
present a defense and to confront witnesses against him. We
conclude that any error was harmless.
¶ 63 The trial court’s decision not to admit the Results did not
substantially influence the verdict or affect the fairness of the
27 proceedings. The jury was shown several pieces of DNA evidence
that linked Thames to the crime scene. Those test results placed
Thames’s DNA in locations where no other suspect’s DNA was
detected. Woods testified that Thames’s DNA was found on a
blanket in J.T.’s apartment, the pieces of soap inserted in J.T.’s
vagina, and the leash used to strangle J.T., as well as underneath
J.T.’s fingernails.
¶ 64 Even though Woods did not testify at length about the Results,
she did say it was possible that J.T.’s blood was on Dewey’s shirt.
Further, the trial court did not prevent defense counsel from
arguing in closing that J.T.’s blood was found on Dewey’s shirt.
¶ 65 During closing argument, defense counsel referred to the
Results several times. Defense counsel argued that “J.T.’s blood
was on the shirt back in 1996” and that Woods had tested different
areas of the shirt when she conducted her analysis years later.
Counsel further argued that, even though “the type of testing they
did back then wasn’t as advanced . . . as it is now,” no witness had
challenged the accuracy of the Results. Defense counsel also
asserted “[t]here is not a concern that GeneScreen got it wrong back
in 1996. Not a legitimate one.” Counsel concluded this argument
28 by stating, “So, J.T.’s blood was on the shirt in 1996. Just because
they tested new areas of the shirt that didn’t have her blood spatter
on it, does not mean that GeneScreen was wrong in 1996. That is
faulty logic.”
¶ 66 Based on this record, we conclude that the trial court’s
decision not to admit the Results was harmless.
VI. The Alleged Errors Do Not Amount to Cumulative Error
¶ 67 Thames further contends that, even if each of the above
alleged errors does not separately require reversal, he was deprived
of a fair trial because of the errors in the aggregate. We disagree.
¶ 68 To decide this issue, we must evaluate whether “[n]umerous
formal irregularities . . . in the aggregate show the absence of a fair
trial.” Howard-Walker v. People, 2019 CO 69, ¶ 24, ___ P.3d ___,
___ (quoting Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443, 446
(1962)). “A conviction will not be reversed if the cumulative effect of
any errors did not substantially prejudice the defendant’s right to a
fair trial.” People v. Whitman, 205 P.3d 371, 387 (Colo. App. 2007)
(citing People v. Roy, 723 P.2d 1345, 1349 (Colo. 1986)). Individual
rulings that adversely affect a party, if not determined to be
erroneous, cannot serve as the basis for reversal under a
29 cumulative error analysis. People v. Clark, 214 P.3d 531, 543 (Colo.
App. 2009), aff’d on other grounds, 232 P.3d 1287 (Colo. 2010).
¶ 69 As noted above, we have found no error in the trial court’s
decision to refuse to admit evidence of Dewey’s conviction, the
prosecutor’s comments during closing argument, or the admission
of the video of the Interrogation. We assume, without deciding, that
the refusal to admit the Results was error. Even if it was
erroneous, however, Thames still received a fair trial because “[t]he
doctrine of cumulative error requires that numerous errors be
committed . . . .” People v. Rivers, 727 P.2d 394, 401 (Colo. App.
1986) (emphasis added). Even assuming that the trial court erred
once, a single error is insufficient to reverse under the cumulative
error standard. Id. Accordingly, we conclude there is no basis for
reversal on grounds of cumulative error.
VII. Although Imposition of the Surcharges Did Not Violate Thames’s Double Jeopardy Rights, He Is Entitled to Argue He Should Not Be Required to Pay Them
¶ 70 Thames contests the Surcharges, which the trial court
imposed after sentencing: (1) a sex offender surcharge; (2) a special
advocate surcharge; (3) a genetic testing surcharge; and (4) court
costs. He contends that the imposition of the Surcharges following
30 his initial sentencing violated his double jeopardy rights. He
further contends that he was wrongfully deprived of the opportunity
to seek a waiver of the Surcharges based on his indigency or
inability to pay. While we disagree that the trial court violated
Thames’s double jeopardy rights, we remand to the trial court to
allow Thames to request a waiver of the Surcharges.
A. Standard of Review and Law Governing Double Jeopardy When a Court Corrects an Illegal Sentence
¶ 71 The alleged violation of a defendant’s double jeopardy rights is
a legal question we review de novo. People v. Tillery, 231 P.3d 36,
48 (Colo. App. 2009), aff’d sub nom. People v. Simon, 266 P.3d 1099
(Colo. 2011). The Double Jeopardy Clauses of the United States
and Colorado Constitutions protect a defendant from being twice
punished for the same offense. U.S. Const. amends. V, XIV; Colo.
Const. art. II, § 18. A court violates a defendant’s double jeopardy
rights by “increasing a lawful sentence after it has been imposed
and the defendant has begun serving it” because the increased
sentence may, in certain circumstances, constitute multiple
punishments for the same offense. People v. McQuarrie, 66 P.3d
181, 182 (Colo. App. 2002).
31 ¶ 72 An illegal sentence does not implicate double jeopardy,
however. Such a sentence “may be corrected at any time by a
sentencing court without violating a defendant’s rights against
double jeopardy.” People v. Smith, 121 P.3d 243, 251 (Colo. App.
2005); see also Crim. P. 35(a) (“The court may correct a sentence
that was not authorized by law or that was imposed without
jurisdiction at any time . . . .”); Bozza v. United States, 330 U.S.
160, 166-67 (1947) (holding that a sentence may be increased
without implicating double jeopardy when the original sentence did
not conform to a statutory requirement). We review the legality of a
sentence de novo. People v. Bassford, 2014 COA 15, ¶ 20, 343 P.3d
1003, 1006.
B. Imposition of the Surcharges to Correct an Illegal Sentence Does Not Violate Thames’s Rights Against Double Jeopardy
¶ 73 All four of the Surcharges are mandatory. See
§ 13-32-105(1)(a)-(b), C.R.S. 2018 (“[T]here shall be charged against
the defendant a total docket fee of thirty [five] dollars, which shall
be payable upon conviction of the defendant.”); § 18-21-103(1),
C.R.S. 2018 (“[E]ach person who is convicted of a sex offense . . .
shall be required to pay a surcharge . . . .”); § 24-4.2-104(1)(a)(II)(A),
32 C.R.S. 2018 (“[A] [special advocate] surcharge of one thousand three
hundred dollars shall be levied on each criminal action resulting in
a conviction . . . .”); § 24-33.5-415.6(3)(a), C.R.S. 2018 (“A cost of
two dollars and fifty cents is hereby levied on each criminal action
resulting in a conviction . . . for a felony . . . .”); see also People v.
Hyde, 2017 CO 24, ¶ 28, 393 P.3d 962, 969 (“The legislature’s use
of the word ‘shall’ in a statute generally indicates its intent for the
term to be mandatory.”).
¶ 74 A court must therefore impose the Surcharges unless it finds
the defendant is entitled to a waiver.
¶ 75 Initially, we note that the special advocate surcharge is akin to
a civil sanction and is not punitive. See McQuarrie, 66 P.3d at 182-
83 (referring to the surcharge imposed by this statute as the
“victims and witnesses surcharge”). Because this surcharge is not
punitive, it does not implicate double jeopardy protections. Id.
¶ 76 Thames’s original sentence was contrary to statute, and
therefore illegal, as the trial court did not include the Surcharges in
the sentence. People v. Yeadon, 2018 COA 104, ¶ 51, ___ P.3d ___,
___ (cert. granted Mar. 25, 2019). Thames’s double jeopardy rights
were therefore not implicated through the imposition of the
33 Surcharges. Smith, 121 P.3d at 251 (correcting an illegal sentence
does not violate a defendant’s right against double jeopardy). For
this reason, the trial court must amend the mittimus to address the
Surcharges (either by imposing them or waiving them after
considering Thames’s arguments that he is not required to pay
them) and thereby correct his illegal sentence. Yeadon, ¶ 51, ___
P.3d at ___.
C. The Trial Court Must Give Thames the Opportunity to Prove He Is Indigent or Otherwise Financially Unable to Pay the Surcharges
¶ 77 By statute, each of the Surcharges may be waived based on
the defendant’s financial status. See § 18-21-103(4) (“The court
may waive all or any portion of the surcharge required by this
section if the court finds that a person convicted of a sex offense is
indigent or financially unable to pay . . . .”); § 24-4.2-104(1)(c) (“The
[special advocate] surcharge levied by this section may not be
suspended or waived by the court unless the court determines that
the defendant is indigent.”); § 24-33.5-415.6(9) (“The court may
waive a cost or surcharge levied pursuant to [section 24-33.5-415.6]
if the court determines the defendant is indigent.”); see also Chief
Justice Directive 85-31, Directive Concerning the Assessment and
34 Collection of Statutory Fines, Fees, Surcharges, and Costs in
Criminal, Juvenile, Traffic and Misdemeanor Cases (amended Aug.
2011) (“If the statute or rule is silent as to the court’s authority for
waiver or suspension of the specific fine, fee, surcharge, or cost
being considered, this [Chief Justice Directive] shall provide
authority for the court to waive or suspend the imposition or
collection of the amount only in those instances where the court
finds the Defendant or Respondent has no ability to pay the
assessed amount.”).
¶ 78 Despite the statutory waiver language, the trial court imposed
the Surcharges on Thames without giving him an opportunity to
prove he falls within one or more of the exemptions. Thus, we
remand to the trial court to afford Thames an opportunity to prove
he is entitled to a waiver. Yeadon, ¶ 52, ___ P.3d at ___.
VIII. Conclusion
¶ 79 The judgment is affirmed. The case is remanded to the trial
court with instructions to provide Thames with the opportunity to
prove he is entitled to a waiver of one or more of the Surcharges.
JUDGE ROMÁN and JUDGE J. JONES concur.