19CA1448 Peo v Morales-Ramirez 01-20-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA1448
Arapahoe County District Court No. 16CR3238
Honorable Patricia D. Herron, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Alberto Morales-Ramirez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE BROWN
Berger and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 20, 2022
Philip J. Weiser, Attorney General, Mark T. Bailey, Senior Assistant Attorney
General II, Paul E. Koehler, First Assistant Attorney General, Denver, Colorado,
for Plaintiff-Appellee
Driscoll Law Office, Robert J. Driscoll, Denver, Colorado, for Defendant-
Appellant
1
¶ 1 Defendant, Alberto Morales-Ramirez, appeals his judgment of
conviction on four counts of distribution of a controlled substance.
We affirm.
I. Background
¶ 2 In 2016, a grand jury indicted Morales-Ramirez and twelve
other defendants for drug crimes. On March 20, 2019, Morales-
Ramirez went to trial on ten counts of distribution of a controlled
substance, one count of conspiracy, and two counts for violations of
the Colorado Organized Crime Control Act (COCCA).
¶ 3 During opening statements, the prosecutor told the jury he
expected to prove five of the drug transactions through a phone
recording, testimony from an undercover Drug Enforcement
Administration (DEA) agent, and testimony from an informant. The
prosecutor then told the jury that he expected to prove the other
five drug transactions through wiretap phone recordings and
testimony from two of Morales-Ramirez’s codefendants. The
prosecutor explained that the evidence collectively would show that
Morales-Ramirez conspired to engage in a drug distribution
enterprise.
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¶ 4 The prosecution ultimately was unable to procure Morales-
Ramirez’s codefendants to testify, so the parties agreed that the
prosecution would dismiss the five counts of distribution of a
controlled substance that the prosecution had planned to prove
through the testimony of those witnesses. The prosecution also
dismissed the conspiracy and COCCA charges.
¶ 5 Both parties and the court worked together to craft a curative
instruction to explain to the jury the prosecutor’s opening
statement as it related to the dismissed charges:
During opening statements, there were
references to other incidents, allegations, and
charges, other than the five current charges.
For reasons that are unrelated to you or
your service as a juror in this case, the Court
has dismissed several charges, and there are
now only five charges in this case. Opening
statements are not evidence. You shall not
consider those comments from opening
statements or references to other charges for
any purpose, in any aspect of your service,
including deliberations.
¶ 6 Neither party mentioned the dismissed charges in closing
argument. Both parties focused only on the remaining five drug
transactions, which were based on the phone recording and
testimony from the undercover DEA agent and the informant.
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¶ 7 After a three-day trial, the jury convicted Morales-Ramirez of
four of the five counts of distribution of a controlled substance.
II. Analysis
¶ 8 Morales-Ramirez contends that the district court should have
declared a mistrial based on the prosecutor’s reference in opening
statement to charges that were later dismissed because the
prosecution did not show due diligence in procuring the two
witnesses whose testimony would have supported the dismissed
charges. We disagree.
A. Morales-Ramirez Waived the Error
¶ 9 As an initial matter, we note that Morales-Ramirez’s counsel
expressly agreed to the course of action the district court took to
mitigate the impact of the prosecutor’s opening statement by
creating a curative instruction that he now claims was erroneous.
In doing so, he waived the challenge he raises on appeal. See
Stackhouse v. People, 2015 CO 48, ¶ 17 (holding that waiver applies
not only when counsel expressly states an intent to give up a right,
but also where counsel does not object to the trial court’s action
despite a clear opportunity to do so); cf. People v. Rediger, 2018 CO
4
32, ¶¶ 39-47 (concluding that waiver did not occur where the
defendant’s counsel acquiesced to the jury instructions as a whole).
B. The District Court Did Not Plainly Err by Not Sua Sponte
Granting a Mistrial
¶ 10 Even assuming Morales-Ramirez did not waive the alleged
error, however, his claim fails under the applicable standard of
review.
¶ 11 Because Morales-Ramirez’s counsel did not object to the
court’s curative instruction or move for a mistrial, we review only
plain if it is obvious and substantial and so undermines the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction.” Rediger, ¶ 48. For an
error to be obvious it must contravene a statute or rule, a well-
settled legal principle, or established Colorado case law. Campbell
v. People, 2020 CO 49, ¶ 25.
¶ 12 “A prosecutor’s opening statement is limited to the evidence
that will be adduced at trial.” People v. Melanson, 937 P.2d 826,
836 (Colo. App. 1996). But remarks made in opening statement
that are later proved unsupported by the evidence will constitute
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reversible error only if “there has been an affirmative showing of
bad faith and manifest prejudice.” See id.
¶ 13 Morales-Ramirez acknowledges this standard — which
requires that he demonstrate both bad faith by the prosecution and
manifest prejudice resulting from the comments made in opening
statement — but asks us to reexamine these requirements. He
argues that because the prosecution did not demonstrate “due
diligence” in its efforts to procure the two witnesses that would have
offered evidence supporting the dismissed charges “the
requirement[s] of bad faith and manifest prejudice should not
apply.” Essentially, he argues that the district court plainly erred
by not declaring a mistrial based on a standard that does not exist
now and did not exist at the time of trial.
¶ 14 Because an error is only obvious when it contravenes a statute
or rule, a well-settled legal principle, or established Colorado case
law, such error is generally not obvious when nothing in Colorado
statutes or prior case law would have alerted the trial court to the
error. Scott v. People, 2017 CO 16, ¶ 17. In other words, a trial
court cannot commit plain error by adhering to published Colorado
appellate decisions that were in place at the time of trial; instead,
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the trial court is bound to follow the decisions of the appellate
courts and cannot generally be faulted for not departing from that
authority sua sponte. Id.
¶ 15 Because the standard Morales-Ramirez asks us to adopt did
not exist at the time of trial, we conclude that any error by the
district court in failing to sua sponte declare a mistrial based on
that standard was not obvious. And if the error was not obvious, it
was not plain. See Rediger, ¶ 48.
¶ 16 Moreover, Morales-Ramirez has failed to establish obvious
error by the district court under the standard articulated in
established Colorado case law. See Melanson, 937 P.2d at 836. He
made no affirmative showing of bad faith to the district court.
Although the prosecutor indicated during his opening statement
that two of Morales-Ramirez’s codefendants would testify about five
of the drug transactions, the record reflects that the prosecutor
learned during trial that he would be unable to procure those
witnesses. Because the prosecutor did not learn of the witnesses’
unavailability until after opening statements, we see no evidence of
bad faith. See id. (discerning no evidence of bad faith when the
prosecutor indicated during opening statements that witnesses
7
would testify, but during trial discovered evidence that impeached
their credibility, so chose to cease questioning one witness and not
to call the other).
¶ 17 Morales-Ramirez also failed to show the district court that he
was manifestly prejudiced by the unsupported remarks made in
opening statements. Once the parties and the court learned that
the witnesses were unavailable, they worked together to craft a
curative instruction. The court instructed the jury after closing
arguments that opening statements are not evidence and to
disregard any comments the prosecutor made in opening statement
about the dismissed charges, and we presume that the jury followed
App. 2009), aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo.
2011); see also People v. Ellis, 30 P.3d 774, 778 (Colo. App. 2001)
(holding that absent evidence to the contrary, we presume that the
jury followed the curative instruction and that the instruction cured
any prejudice to defendant). Morales-Ramirez does not articulate
any prejudice he suffered that was not cured by these instructions.
¶ 18 Under these circumstances, we perceive no plain error.
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III. Conclusion
¶ 19 We affirm the judgment of conviction.
JUDGE BERGER and JUDGE JOHNSON concur.
