Pernell v. People , 411 P.3d 669 ( 2018 )

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ADVANCE SHEET HEADNOTE
February 20, 2018
2018 CO 13
No. 15SC3, Pernell v. People—Criminal Law—Harmless Error.
The supreme court reviews the court of appeals’ opinion affirming the
defendant’s conviction for burglary, kidnapping, sexual assault, and other offenses.
The court of appeals held that although the trial court erred by admitting a victim’s
out-of-court statements as excited utterances under CRE 803(2), the trial court’s error
did not require reversal because the statements were admissible as prior consistent
statements to rehabilitate the victim’s credibility after defense counsel attacked it during
his opening statement.
The supreme court concludes that any error in the admission of the victim’s
out-of-court statements was harmless because there is no reasonable possibility that the
admission of these statements contributed to the defendant’s conviction. Accordingly,
the supreme court declines to address whether defense counsel’s opening statement
opened the door to the admission of the victim’s out-of-court statements and expresses
no opinion on this issue. The supreme court therefore affirms the judgment of the court
of appeals, albeit on different grounds.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2018 CO 13
Supreme Court Case No. 15SC3
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 12CA510
______________________________________________________________________________
Petitioner:
Christopher Alexander Pernell,
v.
Respondent:
The People of the State of Colorado.
______________________________________________________________________________
Judgment Affirmed
en banc
February 20, 2018
______________________________________________________________________________
Attorneys for Petitioner:
Berg Hill Greenleaf & Ruscitti, LLP
Sean James Lacefield
Denver, Colorado
Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
Melissa D. Allen, Senior Assistant Attorney General
Denver, Colorado
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
¶1 A jury convicted Defendant Christopher Pernell of several charges, including
burglary, kidnapping, and sexual assault. The prosecution alleged that Pernell showed
up at his ex-wife’s house uninvited; forced his way into her home; threatened her and
her boyfriend at gunpoint; forced her to have sexual intercourse; and prevented her
from fleeing. At trial, the prosecution presented multiple witnesses, including the
ex-wife, the boyfriend, and a police officer who investigated the incident, as well as
corroborating physical evidence. Pernell did not testify or present evidence at trial. His
theory of defense was that the ex-wife and the boyfriend fabricated the story of the
incident. Consistent with this theory, defense counsel told the jury during opening
statements that the incident, as described by the ex-wife and the boyfriend, “didn’t
happen” and that the ex-wife and the boyfriend “concoct[ed] their story to get [Pernell]
out of their lives.”
¶2 An officer who testified at trial recounted the ex-wife’s description of the
incident to him. Pernell objected to this testimony, arguing that the ex-wife’s
out-of-court statements to the officer constituted inadmissible hearsay. The trial court
admitted these statements as excited utterances under CRE 803(2). On appeal, Pernell
argued, among other things, that the trial court had reversibly erred in admitting the
ex-wife’s statements.
¶3 The court of appeals affirmed the judgment of conviction. People v. Pernell, 2014
COA 157, ___ P.3d ___. As relevant here, the court agreed with Pernell that the trial
court erred in admitting the ex-wife’s out-of-court statements as exited utterances under
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CRE 803(2), but concluded that the error did not require reversal because the statements
were nonetheless admissible as prior consistent statements to rehabilitate the ex-wife’s
credibility after Pernell had attacked it. Id. at ¶ 37. In so ruling, the court of appeals
reasoned that defense counsel’s opening statement that the ex-wife fabricated her story
opened the door for the admission of her out-of-court statements. Id. at ¶ 40. We
granted Pernell’s petition for a writ of certiorari to review whether a defendant’s
opening statement can open the door to admit otherwise inadmissible evidence. 1
¶4 However, upon review of the trial record, we conclude that any error in the
admission of the ex-wife’s out-of-court statements was harmless because there is no
reasonable possibility that the admission of these statements contributed to Pernell’s
conviction. Accordingly, we decline to address whether defense counsel’s opening
statement opened the door to the admission of the ex-wife’s out-of-court statements and
express no opinion on this issue. We therefore affirm the judgment of the court of
appeals, albeit on different grounds.
I. Facts and Procedural History
¶5 The People charged Defendant Christopher Pernell with two counts of second
degree kidnapping, one count of sexual assault, one count of first degree burglary, two
counts of menacing, one count of violation of a protection order, and three
1 We granted certiorari to review the following issue: “Whether, as a matter of first
impression, a defendant’s opening statement can ‘open the door’ to otherwise
inadmissible evidence.”
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crime-of-violence sentence enhancers. The charges stemmed from an incident on the
night of August 1, 2010, involving Pernell, his ex-wife, and the ex-wife’s boyfriend. At
the time of the incident, Pernell and the ex-wife had divorced, and Pernell was subject
to a court-issued protection order prohibiting him from harassing, intimidating,
threatening, or molesting the ex-wife, and requiring him to stay at least 100 yards away
from her at all times.
¶6 According to the prosecution, Pernell showed up at his ex-wife’s house uninvited
at night. He forced his way into her home, threatened her and her boyfriend at
gunpoint, forced her to have sexual intercourse after allowing the boyfriend to leave,
and prevented her from fleeing. At trial, the prosecution presented several witnesses,
including the ex-wife, the boyfriend, and a police officer who investigated the incident.
The prosecution also introduced corroborating physical evidence.
¶7 Pernell did not testify or present any evidence at trial. Instead, his counsel
argued that although Pernell went to his ex-wife’s home, he did not bring a gun; that
Pernell had consensual sex with his ex-wife; and that the ex-wife and the boyfriend
fabricated the story of the incident. During opening statements, defense counsel stated
that the incident, as described by the ex-wife and the boyfriend, “didn’t happen” and
that the ex-wife and the boyfriend “concoct[ed] their story to get [Pernell] out of their
lives.”
¶8 The prosecution’s first trial witness was Officer Todd Gentry, a police officer
who spoke with the ex-wife the morning after the incident and who investigated her
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complaint against Pernell. Officer Gentry testified that when he spoke with the ex-wife,
she was “visibly distraught” and “traumatized from the event that had happened 12
hours prior.” When asked to explain what he meant by “distraught,” Officer Gentry
responded, “she was afraid, really to the point of probably being terrified. Her head
was down. Her eyes were down.” Officer Gentry testified that the ex-wife told him
that Pernell came into her home with a gun; threatened her and the boyfriend at
gunpoint; ordered her into the bedroom after allowing the boyfriend to leave; forced
her to have sexual intercourse with him; and stopped her from escaping.
¶9 Pernell objected to Officer Gentry’s testimony regarding the ex-wife’s account of
the incident, arguing that her statements to the officer were inadmissible hearsay. The
trial court overruled the objection, concluding that the ex-wife’s statements to Officer
Gentry “just barely” qualified as excited utterances admissible pursuant to CRE 803(2)
(ostensibly because the officer testified that the ex-wife appeared to be still under the
stress of the incident when she made the statements twelve hours later). Defense
counsel later moved for a mistrial on the ground that the ex-wife’s statements to Officer
Gentry were improperly admitted; the court denied this motion.
¶10 Both the ex-wife and her boyfriend testified at trial. According to their
testimony, they were together inside the ex-wife’s house when they heard knocking on
the front door. After the ex-wife opened the front door slightly, Pernell forcefully
pushed the door open, causing the ex-wife to fall backward and scream. Pernell pulled
out a gun and entered the home. Once inside the home, Pernell held the gun to the
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boyfriend’s head and said, “Bang” or “Bam.” Pernell then moved the gun away from
the boyfriend’s head, ordered the couple to sit at a table, and began questioning the
boyfriend about his relationship with the ex-wife. Eventually, Pernell permitted the
boyfriend to leave the house but told him not to call the police.
¶11 The ex-wife further testified that after the boyfriend left, Pernell ordered her into
the bedroom at gunpoint and told her to take off her clothes. Pernell then forced her to
have sexual intercourse with him, over her continued objection. When Pernell stopped,
the ex-wife grabbed his gun and attempted to escape the house through the front door,
but Pernell stopped her and took back the gun. Pernell ordered her back to the
bedroom, forced her onto the bed, and held the gun to her head. He left only after she
promised that she would not call the police. After Pernell left her house, the ex-wife
went to the boyfriend’s house, where she spent the night. The following morning, she
reported the incident to the police and spoke with Officer Gentry, among others.
¶12 Other witness testimony supported the ex-wife and the boyfriend’s account of
the incident. One of the ex-wife’s neighbors testified that on the night of the incident,
she saw a man knock on the ex-wife’s door and enter the home. Another witness
testified that as she was standing at a bus stop, she observed a man carrying a bag
under his arm walk up to the ex-wife’s house and knock hard on the door several times.
When she saw the door swing open, she saw the man “dart[] . . . in[to] the house” and
heard a woman scream.
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¶13 The prosecution also introduced photographs—collected by a sexual assault
nurse examiner who examined the ex-wife the day after the incident—that showed
bruising on the ex-wife’s buttocks and other parts of her lower body. Forensic evidence
indicated that Pernell’s DNA was present in the ex-wife’s vaginal swab.
¶14 Additionally, the prosecution introduced a police recording and transcript of a
pretext call between Pernell and the ex-wife the day after the incident. During this
phone conversation, the ex-wife told Pernell, “[Y]ou pointed a gun at me, threatened to
kill me . . . [y]ou made me have sex with you. I’m, I’m afraid.” Pernell stated, “I know,
I know. That’s the reason I got rid of [the gun] and I, I promise you that my word that
that is done.” Later in the conversation, the ex-wife stated, “You raped me . . . . You
forced me to have sex. You forced me to have sex with you. And I told you I didn’t
want to do it. I begged you not to do it.” Pernell responded, “Um, I, I’m sorry. I wasn’t
in my right frame of mind.”
¶15 As noted above, Pernell did not testify or present any evidence at trial. His
counsel argued that he had consensual intercourse with the ex-wife on the night in
question and that the ex-wife and the boyfriend fabricated the story of the incident.
After presenting this theory in his opening statement, defense counsel vigorously
cross-examined both the ex-wife and the boyfriend. Counsel asked the ex-wife whether
she “came up with this story” with the boyfriend and questioned her motivations for
waiting to report the incident to the police until the following day and for changing into
pants before going to the police station to make the report. During closing arguments,
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defense counsel again asserted that the ex-wife and the boyfriend had fabricated the
allegations against Pernell, adding that the ex-wife had testified that she attempted to
make her story more “believable” by changing from her skirt into pants before going to
the police station.
¶16 The jury convicted Pernell on all counts as charged, and the trial court sentenced
him to an indeterminate term of fifty-eight years to life in the custody of the
Department of Corrections.
¶17 Pernell appealed the judgment of conviction, arguing, among other things, that
the trial court reversibly erred by admitting Officer Gentry’s testimony regarding the
ex-wife’s out-of-court statements. Pernell argued that the ex-wife’s statements were not
admissible as excited utterances under CRE 803(2).
¶18 The court of appeals affirmed the judgment of conviction. People v. Pernell, 2014
COA 157, ___ P.3d ___. Relevant here, the court agreed with Pernell that the trial court
erred in admitting the ex-wife’s out-of-court statements as exited utterances. Id. at ¶ 35.
The court reasoned that the evidence showed that in the twelve hours that followed the
incident, the ex-wife drove to her boyfriend’s house, spent the night there, told him
about the sexual assault, drove home the following morning, changed clothes, and
drove to the police station where she made the statements at issue. Id. at ¶ 34. The
court concluded that this evidence showed the ex-wife had “‘several independent
interludes of reflective thought’ that rendered her statements less than spontaneous.”
Id. (quoting People v. Stephenson, 56 P.3d 1112, 1116 (Colo. App. 2001)).
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¶19 However, the court of appeals held that reversal was not required because the
statements were admissible on an alternative basis, namely, as prior consistent
statements to rehabilitate the ex-wife’s credibility after Pernell had attacked it. Id. at
¶ 37 (citing People v. Eppens, 979 P.2d 14, 21 (Colo. 1999) (referring to the “generally
accepted non-hearsay use of prior consistent statements for rehabilitative purposes”
under common law)).2 Although the ex-wife’s out-of-court statements were admitted
before the ex-wife testified, the court of appeals concluded that defense counsel’s
accusations in his opening statement that the ex-wife fabricated her story opened the
door to the admission of her out-of-court statements through Officer Gentry’s
testimony. Id. at ¶ 40. The court further opined that even if defense counsel’s
accusations during his opening statement had not opened the door, the ex-wife’s
statements would have been admissible after defense counsel’s cross examination of the
ex-wife. Id. at ¶ 41. Therefore, the court reasoned, any error in the premature
admission of this evidence was harmless. Id.
¶20 Pernell’s petition for certiorari review followed.
2 Because the court of appeals determined the ex-wife’s out-of-court statements to
Officer Gentry were admissible as prior consistent statements to rehabilitate her
credibility after Pernell had attacked it, it did not address whether the ex-wife’s
statements would have been admissible under CRE 801(d)(1)(B), which provides that a
prior consistent statement by a witness subject to cross examination that is offered to
rebut a charge of recent fabrication or improper influence or motive is not hearsay. See
Pernell, ¶ 37 n.2.
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II. Analysis
¶21 Although we granted certiorari in this case to review whether defense counsel’s
opening statement opened the door to the admission of the ex-wife’s out-of-court
statements to Officer Gentry, we conclude that we need not decide this issue. Upon
review of the trial record, we conclude that any error in the admission of the ex-wife’s
statements was harmless. Accordingly, we affirm the judgment of the court of appeals
on different grounds and decline to reach the issue for which we granted certiorari. See
People v. Saint-Veltri, 945 P.2d 1339, 1342 (Colo. 1997) (declining to reach the issue for
which certiorari was granted because “that issue poses a hypothetical question whose
answer would not necessarily decide the case”).
A. Standard of Review
¶22 Because Pernell timely objected to the admission of Officer Gentry’s testimony
recounting the ex-wife’s out-of-court statements, any error that occurred in the
admission of this evidence is subject to non-constitutional harmless error review. See
Nicholls v. People, 2017 CO 71, ¶ 17, 396 P.3d 675, 679; Yusem v. People, 210 P.3d 458,
469 (Colo. 2009). Under this standard, “an erroneous evidentiary ruling does not
require reversal unless the ruling affects the accused’s substantial rights.” Nicholls,
¶ 17, 396 P.3d at 679. A reviewing court’s “determination [of] whether a trial error has
affected a substantial right of a defendant can only result from a case specific
assessment of the likely impact of the error in question on the outcome of the litigation
as a whole,” People v. Rock, 2017 CO 84, ¶ 22, 402 P.3d 472, 479, and an objected-to trial
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error is harmless if there is no reasonable possibility that it contributed to the
defendant’s conviction, People v. Roman, 2017 CO 70, ¶ 13, 398 P.3d 134, 138; see also
People v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (an error may be deemed harmless
“[i]f a reviewing court can say with fair assurance that, in light of the entire record of
the trial, the error did not substantially influence the verdict or impair the fairness of the
trial”).
B. Application
¶23 Pernell contends that the court of appeals erred in holding that defense counsel’s
opening statement opened the door for the admission of the ex-wife’s out-of-court
statements because, he argues, opening statements are not evidence and cannot open
the door to the admission of otherwise inadmissible hearsay. Pernell argues that
because the ex-wife’s statements did not qualify as excited utterances under CRE 803(2),
and because they were inadmissible to rehabilitate the ex-wife’s credibility, the trial
court erred in admitting them. Further, Pernell argues, the erroneous admission of her
statements under these circumstances was not harmless because the ex-wife’s
credibility was “essential” to the prosecution’s case, and the prosecution offered the
statements as “substantive evidence to unfairly bolster [the ex-wife’s] credibility.”
¶24 We need not address whether opening statements may open the door to
otherwise inadmissible evidence because, based on our review of the trial record, we
conclude that any error in the admission of this testimony was harmless.
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¶25 We have never reduced the question of a trial error’s prejudicial impact to a
specific set of factors. See Crider v. People, 186 P.3d 39, 43 (Colo. 2008). That said, we
have indicated that the strength of the properly admitted evidence supporting the
guilty verdict is clearly an “important consideration” in the harmless error analysis. Id.
Similarly, we have held evidentiary error to be harmless where the properly admitted
evidence overwhelmingly shows guilt. See, e.g., People v. Summitt, 132 P.3d 320, 327–
28 (Colo. 2006) (holding that the trial court’s evidentiary error was harmless in light of
“the overwhelming proof in the record that [the defendant] committed the crimes for
which the jury convicted him”); Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986) (holding
that the trial court’s error in admitting certain expert testimony was harmless given “the
overwhelming evidence of guilt produced in this case”).
¶26 Here, the record contains overwhelming, properly admitted evidence of Pernell’s
guilt. The ex-wife’s account of the events was corroborated both by physical evidence
and by the testimony of several witnesses, including the boyfriend, who directly
observed much of the incident. Moreover, Pernell’s own statements during his phone
conversation with the ex-wife the day after the incident strongly support the ex-wife’s
allegations. At least twice during this conversation, Pernell appeared to admit to the ex-
wife’s version of the incident. In response to the ex-wife’s statement that she was afraid
because he “pointed a gun at [her,] threatened to kill [her, and] made [her] have sex
with [him],” Pernell said, “I know, I know.” When the ex-wife later stated
unequivocally to Pernell, “You raped me . . . . You forced me to have sex. You forced
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me to have sex with you. And I told you I didn’t want to do it. I begged you not to do
it,” Pernell did not deny the statements but instead responded, “Um, I, I’m sorry. I
wasn’t in my right frame of mind.”
¶27 We are unpersuaded by Pernell’s contention that the alleged error here was not
harmless because the ex-wife’s credibility was “essential” to the prosecution’s case. We
previously have held that improper bolstering evidence was not harmless where the
victim’s credibility was the “focal issue” of a case. See, e.g., People v. Snook, 745 P.2d
647, 649 (Colo. 1987) (error in admitting expert testimony directly supporting the
victim’s credibility was not harmless where the victim’s credibility was the “focal issue
in the case”). But it is clear from the trial record that the ex-wife’s credibility was not
the focal issue here. In addition to the ex-wife’s testimony, the prosecution’s case
depended on the ex-boyfriend’s testimony, corroborating testimony from other
witnesses, physical evidence, and, perhaps most significantly, Pernell’s own statements
during his phone conversation with the ex-wife—which the prosecution referenced
repeatedly in its closing statement.
¶28 Finally, we note that defense counsel cross-examined Pernell’s ex-wife at length.
This cross-examination spanned over 100 transcript pages, during which defense
counsel questioned her vigorously and extensively regarding her account of the
incident and her motivations to fabricate the story. Under these circumstances, we
conclude there is no reasonable possibility that the admission of the ex-wife’s
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out-of-court statements compromised the jury’s ability to independently evaluate the
ex-wife’s credibility.
III. Conclusion
¶29 Based on the trial record, we conclude that, even if the trial court erroneously
admitted the ex-wife’s out-of-court statements, there is no reasonable possibility that
this alleged error contributed to Pernell’s conviction. We therefore hold that any such
error was harmless. We decline to address whether defense counsel’s opening
statement opened the door to the admission of the ex-wife’s out-of-court statements and
express no opinion on this issue. Accordingly, we affirm the judgment of the court of
appeals on different grounds.
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