People v. Summitt ( 2006 )

Justice MARTINEZ

concurring in part, dissenting in part, and dissenting from the judgment.

I agree with the majority that whether Summitt’s conviction must be reversed due to the trial court’s admission of arrest evidence poses an evidentiary issue and not a constitutional question. I further agree that the arrest evidence lacked probative value and, therefore, was inadmissible. The majority and I part ways, however, on whether the admission of this prejudicial evidence was harmless error. I conclude that the admission into evidence of the arrest evidence warrants the reversal of Summitt’s conviction because of the inherently prejudicial nature of arrest evidence, aggravated by the prosecutor’s repeated remarks and the trial court’s erroneous instruction on consciousness of guilt. In contrast, the majority fails to consider the effect of the prosecutor’s remarks about the arrest evidence and considers the error harmless. Maj. op. at 372-78. Accordingly, I concur with sections I. and II.A.— II.D. of the majority opinion and respectfully dissent from section II.E. and the judgment.

I. Harmless Error Analysis

An appellate court must apply the harmless error standard to determine whether a case must be retried for the erroneous admission of improper evidence despite a timely objection. People v. Quintana, 665 P.2d 605, 612 (Colo.1983). The harmless error test requires an inquiry into whether the contested evidence substantially influenced the verdict or affected the fairness of the trial proceedings. Id. The proper inquiry is not whether there was sufficient evidence to support the guilty verdict without the improperly admitted evidence but, rather, whether the contested evidence substantially influenced the verdict or affected the fairness of the trial proceedings. Masters v. People, 58 P.3d 979, 1003 (Colo.2002). Only error that affected the “substantial rights of the parties” warrants reversal. C.A.R. 35(e); People v. Welsh, 80 P.3d 296, 310 (Colo.2003).

To determine whether Summitt’s substantial rights were affected by the admission of the circumstances surrounding his arrest, I review the prejudicial nature of arrest evidence, the prosecutor’s comment on the evidence, and the trial court’s response in light of the evidence before the jury. The prosecutor’s comments on evidence wrongfully admitted are a proper consideration in the harmless error analysis, notwithstanding the majority’s statement that it need not review the effect of the comments because the defendant did not object during closing argument. Salcedo v. People, 999 P.2d 833, 841 (Colo.2000).

Evidence on the events surrounding Sum-mitt’s arrest affected how the jury perceived him in a prejudicial manner. I analogize the effect of this evidence to requiring a defendant to wear shackles or a prison uniform: a subconscious instruction to the jury that a defendant is dangerous and should be treated like a criminal. Dressing a defendant as a dangerous criminal, instead of as an individual afforded the presumption of innocence, may interfere with the jury’s determination as to the guilt or innocence of the defendant. Eaddy v. People, 115 Colo. 488, 492,174 P.2d 717, 718 (1946) (“the presumption of innocence requires the garb of innocence ...”); see Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (“[T]he sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant .... ”). And the use of shackles or prison uniforms “suggests to the jury that the justice system itself sees a ‘need to separate a defendant from the community at large.’ ” Deck v. Missouri, 544 U.S. 622,125 S.Ct. 2007, 2013, 161 L.Ed.2d 953 (2005) (citing Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)).

Similar to forcing a defendant to wear shackles or a prison uniform in front of the jury, testimony about a defendant’s arrest informs the jury about how the police thought the defendant should be treated and that he should be jailed. In this case, the testimony about the events surrounding Summitt’s arrest branded him a dangerous criminal in the eyes of the jury. Deputy Rusk testified that at least five law enforcement officers, from two jurisdictions, surrounded Summitt’s house. Deputy Long testified to six law enforcement officers surrounding the residence. This testimony informed the jurors that the police considered Summitt so dangerous as to require the assistance of a multitude of officers. Similarly, Deputy Long testified that at least one police officer was watching the back corner of the defendant’s house, strongly suggesting that the defendant was considered a flight risk. Although the suggestion of the defendant’s dangerousness was somewhat diminished because the police did not enter his home and arrest him without a warrant, this testimony evoked images of a dangerous defendant whose hide-out was surrounded by a small battalion of armed police officers. Such testimony branded Summitt in the eyes of the jurors “with an unmistakable mark of guilt.” Holbrook v. Flynn, 475 U.S. 560, 571, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (quoting Estelle v. Williams, 425 U.S. 501, 518, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (Brennan, J., dissenting)).

The prosecutor took advantage of the prejudicial nature of arrest evidence by repeatedly emphasizing and misstating the circumstances of Summitt’s arrest throughout the trial. In Salcedo, this court determined that the prosecutor’s drawing attention to the wrongly admitted evidence once during closing argument warranted reversal. Salcedo, 999 P.2d at 841; see also People v. Suazo, 87 P.3d 124, 127 (Colo.App.2003). Here, the error is more egregious because the State continuously stressed the erroneously admitted arrest evidence.

During opening argument, the prosecutor stated: “Finally, ladies and gentlemen, pay attention to how Mr. Summitt is apprehended. There will be another important part of how the pieces fit together in this case.” In their case-in-chief, the prosecution called four witnesses, two of whom testified about Summitt’s arrest.⁴ Also, during the State’s rebuttal closing, the prosecutor rhetorically asked:

[After leaving the hospital] where did he go? He ran, and hid, behind his mother’s doors, and he stayed there until the cops flushed him out. Is that the conduct of a guy that’s done nothing wrong, members of the jury? Or is that somebody huddled up inside, scared out of his wits, that finally the jig is up and he is going to be held responsible for what he has done? And I suggest to you it’s the latter.

(Emphasis added.) The prosecutor’s rebuttal closing played on the inherently prejudicial nature of arrest evidence by depicting Summitt as a guilty defendant hiding out behind the walls of his home while the police adeptly brought him to justice. These comments further mischaraeterized the defendant’s actions as flight evidence, which the majority correctly determined was inadmissible. Thus, a significant portion of the prosecutor’s case erroneously revolved around the defendant’s arrest as part of a pattern of avoidance and flight.

The majority discounts the effect of the prosecutor’s remarks because the defendant did not object to the argument. Maj. op. at 327-28. The defense preserved the error by objecting to the admission of the evidence. See People v. Dunlap, 975 P.2d 723, 745 (Colo.1999). After the trial court admitted the evidence, it was not merely unnecessary for the defense to object to the State’s closing argument, it would have been improper. The arrest evidence was admitted; the State could properly refer to the admitted evidence in its argument. People v. Ferrell, 200 Colo. 128, 131, 613 P.2d 324, 326 (Colo.1980). The error was in the admission of the evidence, to which the defense objected. Nevertheless, the comment aggravated the error of the wrongfully admitted evidence and, therefore, it is a proper consideration in the harmless error determination. Salcedo, 999 P.2d at 841; People v. Summitt, 104 P.3d 232, 237 (Colo.App.2004).

The trial court’s instructions exacerbated the prosecutor’s impermissible focus. After the defense attorney objected to Deputy Long’s testimony about the events surrounding Summitt’s arrest, the trial court sustained counsel’s objection but allowed the previous testimony to come in “as it relates to the defendant’s consciousness of guilt, and for no other matter.” (Emphasis added.) The trial court’s statements suggested to the jury that Summitt’s guilty knowledge was why he initially decided to remain in his home. These remarks instructed the jury to consider the inadmissible circumstances of Summitt’s arrest for the impermissible purpose of consciousness of guilt. Due in part to the respect afforded to the trial judge by the jury and the judge’s instruction that he would explain the law to the jury, the court’s instruction likely impacted the weight the jury attached to Summitt’s supposed consciousness of guilt, which compounded the error of admitting the evidence of arrest. See Welsh, 80 P.3d at 311.

The trial court continued:

I will also advise the jury that the police, before they can enter anybody’s home, even for arrest of that person, are required by law, to obtain a — an arrest warrant, and that a person is not required to allow a police officer into his or her home.

The trial court’s second instruction left the determination of whether Summitt’s acts evidenced his consciousness of guilt or showed his desire that the police obtain a search warrant to the jury. The combination of these two instructions encouraged the jury to speculate about why Summitt remained in his home and resulted in unfair prejudice to the defendant.

The evidence offered at trial was not so overwhelming as to overcome the prejudicial nature of the arrest evidence. Specifically, the People offered no physical evidence corroborating the defendant’s guilt. The prosecution’s only physical evidence was medical evidence about the extent of the victim’s injuries. This medical evidence was consistent both with the prosecution’s theory that Summitt pushed the victim out of his car and the defendant’s theory that she accidentally fell out of the car.

Due to the lack of physical evidence, the prosecution’s case depended on the jury believing the victim’s statement of the incident. Several of her statements could be interpreted as logically problematic and, therefore, supporting the defendant’s theory of the case. For example, the victim testified that Summitt forced her into his car and then simultaneously restrained her in the passenger seat with one hand and started, steered, and shifted his manual automobile. Putting the key into the ignition, steering, and shifting would have been difficult to manage while holding a victim in the right-hand, passenger seat because each would typically involve the use of the driver’s right hand. Furthermore, although the victim testified that Summitt told her not to tell anyone he pushed her, on cross-examination she admitted that the defendant stated that he did not push her and that she better not tell people that he did. The prosecution used Summitt’s statement to depict him as a bully who went to the hospital to force the victim into not telling anyone he pushed her out of the car. Yet, the evidence also supports the defense case that Summitt was only protesting misinformation.

The victim’s account of the incident, while believable, was not so obviously accurate that the jury was not influenced by the inadmissible evidence of Summitt’s arrest. Accordingly, I believe the arrest evidence weighed heavily on the credibility issue and, therefore, substantially influenced the verdict and affected the fairness of the trial proceedings. See C.A.R. 35(e); Welsh, 80 P.3d at 310; People v. Quintana, 665 P.2d at 612. Thus, the admission of the circumstances surrounding Summitt’s arrest into evidence cannot be deemed harmless error.

II. Conclusion

Because I do not consider the admission of arrest evidence harmless, I would reverse Summitt’s conviction.

I am authorized to state that JUSTICE BENDER joins in this concurrence and dissent.

4 . In addition to the testimony of the deputy sheriffs, a doctor testified as to the extent of the victim's injuries and the victim testified about the incident.