v. Lujan , 2018 COA 95 ( 2018 )

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
July 12, 2018
2018COA95
No. 15CA1176, People v. Lujan — Constitutional Law — Sixth
Amendment — Speedy and Public Trial
A division of the court of appeals considers whether the
closure of a courtroom — excluding the public, the parties, and
counsel — to reread instructions to the jury during deliberation
violates a defendant’s Sixth Amendment right to a public trial. The
division concludes that the defendant’s right to a public trial was
violated and that the violation was not trivial because two of the
purposes of the right to a public trial — (1) “to ensure a fair trial”
and (2) “to remind the prosecutor and judge of their responsibility
to the accused and the importance of their functions” — were
compromised by the empty courtroom. Peterson v. Williams, 85
F.3d 39, 43 (2d Cir. 1996). Because the violation of a criminal
defendant’s right to a public trial constitutes structural error, the
division reverses and remands for a new trial.
COLORADO COURT OF APPEALS 2018COA95
Court of Appeals No. 15CA1176
Boulder County District Court No. 13CR1829
Honorable Andrew R. Macdonald, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Abel Lujan,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE RICHMAN
Webb and Fox, JJ., concur
Announced July 12, 2018
Cynthia H. Coffman, Attorney General, Brittany Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Haddon, Morgan and Foreman, P.C., Adam Mueller, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Abel Lujan, appeals the judgment of conviction
entered on a jury verdict finding him guilty of second degree
murder. Because the trial court erroneously ordered the courtroom
to be completely cleared when it reread instructions to the jury
during deliberations, over defendant’s objection, we must reverse
and remand for a new trial.
I. Background
¶2 The victim, defendant’s live-in girlfriend, was beaten,
strangled, and left on the ground outside a friend’s apartment in
1999. In 2013, the People charged defendant with first degree
murder. On the first day of trial, defendant conceded that he was
responsible for the victim’s death, but he argued that he was guilty
only of reckless manslaughter.
¶3 Over defendant’s objection that the evidence violated CRE
404(b), defendant’s ex-wife and a former girlfriend testified about
defendant’s behavior toward them, including that he had hit and
tried to strangle or suffocate them. For each witness’s testimony,
the trial court gave a contemporaneous limiting instruction.
However, at the close of evidence, the jury was instructed only
generally that “[t]he Court admitted certain evidence for a limited
1
purpose. You are instructed that you cannot consider that evidence
except for the limited purpose I told you about when it was
admitted.”
¶4 During deliberations, the jury submitted two questions to the
trial court, one of which said: “Please write down the statement for
the limited use statement [sic] on the testimonies of [defendant’s ex-
wife and former girlfriend].” Defense counsel objected to sending a
written version of the contemporaneous instructions to the jury
room if it did not contain additional language explicitly stating that
the jury could not use the testimonies as evidence of propensity —
language that the trial court had already rejected. The prosecutor
suggested that the jury be brought back to the courtroom, where
the judge could read the written version of the contemporaneous
instructions. After a lengthy discussion, the court gave defense
counsel a choice between (1) sending the jury a written version of
the limiting instructions given contemporaneously with the
testimony and (2) clearing the courtroom while it reread the
contemporaneous limiting instructions aloud to the jury. Counsel
indicated that he preferred reading the instructions to the jury, but
he objected to excluding everyone from the courtroom. The court
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responded that it could “never bring the jury out in front of the
parties” during deliberations and that counsel did not have to worry
about it because the proceeding would be on the record.
¶5 Ultimately, defense counsel asked the court to read the
instructions aloud and to note that “we are not in the courtroom,
. . . and we are allowed to be.” Counsel also requested that the jury
be told why the parties were not present, and the judge responded
“of course.”
¶6 With the courtroom empty except for the jury, the bailiff, and
the court reporter, the trial court said, “All right. Good morning,
ladies and gentlemen. I’m going to read to you the instructions I
read contemporaneous[ly] with the testimony of [defendant’s ex-
girlfriend and his ex-wife].” Then the court reread the instructions
directing that the testimony from each witness could be considered
only to show motive, intent, or common plan. Finally, it said, “That
— those are the instructions. Okay. So thank you.”
¶7 The jury found defendant guilty of second degree (knowing)
murder.
¶8 On appeal, defendant contends that this conviction must be
reversed because (1) closure of the courtroom to read limiting
3
instructions violated his right to a public trial and his right to be
present and (2) the trial court made three erroneous evidentiary
decisions. We agree with defendant’s contention regarding a public
trial and, because we conclude that the error is structural, we do
not address his contention that his right to be present was violated,
as a violation of that right is not structural error. However, we
address his evidentiary contentions because they might arise on
remand.
II. Public Trial
¶9 A criminal defendant’s right to a public trial is guaranteed by
both the United States and Colorado Constitutions. U.S. Const.
amends. VI, XIV; Colo. Const. art. II, § 16. When the trial court
erroneously deprives a defendant of this right, the error is
structural and “require[s] automatic reversal without individualized
analysis of how the error impairs the reliability of the judgment of
conviction.” Hagos v. People, 2012 CO 63, ¶ 10; see Stackhouse v.
People, 2015 CO 48, ¶ 7. A violation of the right to a public trial is
not amenable to a harmless error analysis because “the effects of
the error are simply too hard to measure.” Weaver v.
Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1908 (2017); see
4
Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (noting that it would
be impossible to demonstrate the prejudicial effect of the violation of
a criminal defendant’s right to a public trial).
¶ 10 A trial court’s decision to completely close a criminal
courtroom will not violate a defendant’s public trial right if four
requirements, articulated in Waller, are met: (1) “the party seeking
to close the [proceeding] must advance an overriding interest that is
likely to be prejudiced”; (2) “the closure must be no broader than
necessary to protect that interest”; (3) “the trial court must consider
reasonable alternatives to closing the proceeding”; and (4) “[the trial
court] must make findings adequate to support the closure.” 467
U.S. at 48; accord People v. Hassen, 2015 CO 49, ¶ 9.
¶ 11 Here, the trial court decided sua sponte to exclude all but the
jury, the bailiff, the reporter, and itself from the courtroom,
advancing the bare assertion that it could never bring the jury in
front of parties during deliberations. The court’s statement is
contrary to proper court practices that place the jury and parties
together during deliberations, such as the reading of an Allen
instruction or the presentation of trial exhibits. See People v.
Payne, 2014 COA 81, ¶20 (“[D]efendant had a constitutional right to
5
be present while the trial court read the modified Allen instruction
in open court . . . .”); see also DeBella v. People, 233 P.3d 664, 669
(Colo. 2010) (holding that a court may require that a video be
viewed in open court rather than give a jury unfettered access
during deliberations). And the court gave no reason for excluding
the public.
¶ 12 Thus, no overriding interest was articulated. The closure was
exceedingly broad. And the record reflects that, because defendant
chose to have the instruction read aloud, the court rejected the
reasonable alternative of sending written instructions to the jury,
but made no findings to justify the total closure. Under these
circumstances, the closure was not justified. See, e.g., Presley v.
Georgia, 558 U.S. 209, 216 (2010) (reversing the defendant’s
conviction because the trial court did not consider all reasonable
alternatives to closure, “and that is all this Court needs to decide”).
¶ 13 The People do not argue that the Waller elements were met.
Instead, they urge us to affirm the conviction, notwithstanding the
unjustified closure, because the exclusion was “trivial” and did not
violate defendant’s Sixth Amendment right. See Waller, 467 U.S. at
50 (“[T]he remedy should be appropriate to the violation.”). They
6
argue that no Sixth Amendment violation occurred because the
closure was brief and transcribed, and the court only repeated the
instructions presented during the public portion of the trial.
¶ 14 The triviality standard, first recognized in the Second Circuit,
follows the rationale that not every deprivation in a structural
category constitutes a constitutional violation or requires reversal of
the conviction. See Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir.
2009). When the purposes of the right to a public trial — (1) “to
ensure a fair trial”; (2) “to remind the prosecutor and judge of their
responsibility to the accused and the importance of their functions”;
(3) “to encourage witnesses to come forward”; and (4) “to discourage
perjury” — are not compromised, no Sixth Amendment violation
occurs. Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996).
¶ 15 The triviality standard has not been adopted in Colorado,
although our supreme court has considered it. See Hassen, ¶¶ 15,
17. However, the Tenth Circuit has recognized that a “brief and
inadvertent closing of . . . the courtroom . . . [does] not violate the
Sixth Amendment.” United States v. Al-Smadi, 15 F.3d 153, 154-55
(10th Cir. 1994). This position appears to be the majority view
among courts that have considered this standard. See Kristin
7
Saetveit, Note, Close Calls: Defining Courtroom Closures Under the
Sixth Amendment, 68 Stan. L. Rev. 897, 916 (2016).
¶ 16 We need not pick a side because we conclude that even if we
were to adopt the triviality standard, the closure here was not
trivial. Though the closure was brief, it completely excluded the
public, the attorneys, and defendant from an interaction between
the court and the jury concerning a matter of law. The closure thus
compromised two purposes of the right to a public trial — because
no member of the public was present, the public could not (1) see
that the defendant was tried fairly, or (2) “remind the . . . [court] of
[its] responsibility to the accused and the importance of [its]
function[].” Peterson, 85 F.3d at 43. To ensure a fair trial, the
transparency of the proceedings must extend not only to the words
spoken, but also to the presence and the demeanor of the
participants. When the courtroom is closed, their demeanor is
hidden.
¶ 17 The People’s cited cases, in which courts found no violation of
the Sixth Amendment because closures of the courtroom were
inadvertent, partial, or necessitated by administrative concerns, do
not persuade us that the courtroom closure here could be
8
considered trivial. See United States v. Perry, 479 F.3d 885, 890
(D.C. Cir. 2007) (partial); United States v. Ivester, 316 F.3d 955, 960
(9th Cir. 2003) (administrative); Braun v. Powell, 227 F.3d 908, 918
(7th Cir. 2000) (partial); Al-Smadi, 15 F.3d at 154 (inadvertent);
State v. Lindsey, 632 N.W.2d 652, 660 (Minn. 2001) (partial). None
of these three characteristics was present here.
¶ 18 The People suggest that, if we do not affirm, we should remand
the case to the trial court for a hearing on the Waller elements. But
the record clearly demonstrates that the elements were not met,
and we decline to waste judicial resources on remand. See Hassen,
¶ 12; People in Interest of G.B., 2018 COA 77, ¶ 52.
¶ 19 Because the closure of the courtroom was total, intentional,
and unjustified, we conclude that defendant’s Sixth Amendment
right was violated. Thus, we are compelled to reverse his conviction
and remand the case for a new trial. See Weaver, 582 U.S. at ___,
137 S. Ct. at 1910 (“[I]n the case of a structural error where there is
an objection at trial and the issue is raised on direct appeal, the
defendant generally is entitled to ‘automatic reversal’ regardless of
the error’s actual ‘effect on the outcome.’” (quoting Neder v. United
States, 527 U.S. 1, 7 (1999))).
9
III. Evidentiary Rulings
¶ 20 Defendant also contends that the court committed three
evidentiary errors. Because these issues may arise on remand, we
briefly address them.
¶ 21 “A trial court has broad discretion in ruling on the
admissibility of evidence.” People v. Beilke, 232 P.3d 146, 149
(Colo. App. 2009). A trial court thus abuses its discretion only
when its evidentiary ruling is manifestly arbitrary, unreasonable,
unfair, or is based on a misunderstanding or misapplication of the
law. People v. Thompson, 2017 COA 56, ¶ 91.
¶ 22 Evidence is relevant if it has any tendency to make the
existence of a fact of consequence more or less probable. CRE 401.
All relevant evidence is admissible, except that proscribed by rule or
law. CRE 402. CRE 403 permits exclusion of relevant evidence if
its probative value is substantially outweighed by the danger of
unfair prejudice, but because Rule 403 strongly favors
admissibility, we afford evidence “the maximum probative value
attributable by a reasonable fact finder and the minimum unfair
prejudice to be reasonably expected.” People v. Gibbens, 905 P.2d
10
 604, 607 (Colo. 1995); People v. James, 117 P.3d 91, 94 (Colo. App.
2004).
A. Exclusion of Evidence that Defendant Had Been Upset
¶ 23 A law enforcement officer testified for the People that in all of
their interactions, defendant had never seemed upset or remorseful
about the victim’s death. Defendant sought to elicit rebuttal
testimony, from a different officer, that defendant had been upset
on at least one occasion and “[t]here were times when he was
crying.” The People argued, and the court agreed, that the
testimony should be excluded as self-serving hearsay.
¶ 24 Defendant contends that because the prosecution opened the
door to his demeanor, and the testimony did not involve hearsay, he
was entitled to elicit this testimony as part of his right to present a
defense. We agree that exclusion of the testimony was an abuse of
discretion because the court misapplied the law in concluding that
the evidence was hearsay.
¶ 25 Hearsay is an out-of-court statement offered to prove the truth
of the matter asserted. CRE 801(c). Nonverbal conduct may
constitute hearsay if the conduct is intended to be communicative.
CRE 801(a)(2). But a person’s demeanor is generally not hearsay.
11
See Markgraf v. State, 12 P.3d 197, 199 (Alaska Ct. App. 2000)
(holding that a person’s apparent mental state is not routinely
considered hearsay; collecting cases); see also People v. Acosta,
2014 COA 82, ¶ 33 (“In Colorado, it is well established that a lay
witness may give a summary opinion of another person’s
behavior . . . or state of mind” if the witness personally observed the
person’s behavior.).
B. Admission of Victim’s Statements Under CRE 807
¶ 26 Defendant contends that the court abused its discretion in
admitting statements made by the victim to two witnesses prior to
her death under the residual hearsay exception, which permits
admission of hearsay evidence with circumstantial guarantees of
trustworthiness. See CRE 807. He specifically argues that the
prosecution did not meet its burden to prove the trustworthiness of
the victim’s statements that (1) she “was being abused” by
“[defendant],” in response to a friend’s question about her black eye
and marks on her arms; and (2) defendant “had tried strangling
her,” in response to another friend’s question about marks on her
neck.
12
¶ 27 The trial court found sufficient indicia of reliability for the
victim’s statements, which were testified to by friends who had
personally witnessed defendant physically or verbally abusing the
victim. The court found that the statements were nontestimonial,
not motivated by a police investigation, and prompted by questions
based on personal observations of the victim’s bodily injuries. It
further found that one of the witnesses “was able to vividly recall
the details of the abuse.” The court did not abuse its discretion in
finding that these statements were sufficiently trustworthy. See
People v. Jensen, 55 P.3d 135, 139 (Colo. App. 2001) (holding that
trustworthiness could be determined from the nature and character
of the statements, the relationship of the parties, the probable
motivation of the declarant in making the statements, and the
circumstances under which the statements were made).
C. Admission of Other Acts Toward Intimate Partners
¶ 28 After a pretrial hearing, the trial court ruled that two witnesses
— defendant’s ex-wife and his former girlfriend — could testify
about defendant’s specific acts while in their individual
relationships.
¶ 29 Specifically, defendant’s ex-wife would testify that
13
 in 1991, defendant assaulted her and told police officers
that “if anybody here shows up dead, I’ll be the one who
did it”;
 he hit her on the head and the stomach on October 9,
1993; and
 he threw her on the floor and punched her in the face on
December 17, 1996.
These allegations were documented in contemporaneous police
reports.
¶ 30 Defendant’s ex-girlfriend would testify that
 defendant used a bicycle wheel to break her car window
on August 23, 2005;
 he put his hands around her neck and covered her
mouth in September 2005; and
 he told her about a past girlfriend who “ended up dead.”
The broken car window was documented in a contemporaneous
police report, and the ex-girlfriend reported the other incidents to
police when she was interviewed in 2013.
¶ 31 Section 18-6-801.5(3), C.R.S. 2017, provides that evidence of
other transactions is admissible in domestic violence cases like this
14
one “to show a common plan, scheme, design, identity, modus
operandi, motive, or guilty knowledge or for some other purpose.”
Upon an offer of proof, the court may admit such evidence after
considering “whether the probative value of the evidence . . . is
substantially outweighed by the danger of unfair prejudice to the
defendant, confusion of the issues, or misleading of the jury . . . .”
§ 18-6-801.5(4).
¶ 32 The trial court held a hearing and issued a detailed order
regarding the admissibility of this other act evidence. The court
considered section 18-6-801.5 and CRE 404(b) and found that
(1) defendant had committed the acts and (2) the evidence was
related to a material fact with logical relevance independent of the
prohibited inference of defendant’s bad character. The court
concluded that the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice, and was
admissible. At trial, it provided an appropriate instruction limiting
consideration of the evidence to only defendant’s motive, his intent,
and whether he acted in accordance with a common plan. The
record supports the court’s findings and conclusions.
IV. Conclusion
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¶ 33 We reverse defendant’s conviction and remand the case for a
new trial.
JUDGE WEBB and JUDGE FOX concur.
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