People v. Lopez , 401 P.3d 103 ( 2016 )

COLORADO COURT OF APPEALS 2016COA179
Court of Appeals No. 13CA1600
Jefferson County District Court No. 12CR1974
Honorable Christie A. Bachmeyer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Corey Anthony Lopez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE BOORAS
Terry and Berger, JJ., concur
Announced December 15, 2016
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Audrey E. Bianco, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Corey Anthony Lopez, appeals the trial court’s
judgment of conviction entered on jury verdicts finding him guilty of
one count each of first degree murder — after deliberation;
attempted first degree murder — after deliberation; reckless
endangerment; and third degree assault. We affirm.
I. Background
¶2 In 2012, defendant’s girlfriend, R.B., was at a bar drinking
with her mother, brother, and a friend. At some point, defendant
joined them.
¶3 Later in the evening, the group left the bar and continued
drinking at R.B.’s friend’s home. After some additional drinking,
defendant told R.B. that he wanted to go home because he had to
get up early for work the next day. However, R.B. told defendant
she did not want to leave, and the two began arguing. Eventually,
R.B. left her friend’s house, got into her brother’s car, and asked
him to take her home. As defendant attempted to convince R.B. to
come home with him, R.B.’s friend intervened, asking defendant to
stop bothering R.B. At that point, defendant began arguing with
R.B.’s friend and, as the argument escalated, defendant became so
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angry that he punched out his car window. R.B. then exited her
brother’s vehicle and left the scene on foot.
¶4 The police responded to a noise complaint at R.B.’s friend’s
house soon thereafter. After the police left, R.B.’s mother and
brother headed home, and defendant joined them.
¶5 When the group arrived at the home, R.B. was asleep on the
couch. At approximately 5 a.m., defendant and R.B. traveled to
defendant’s apartment. Later that afternoon, defendant called 911
to report that R.B. was not breathing. When the police and
paramedics arrived, R.B. was dead.
¶6 In interviews with the police, defendant claimed that he and
R.B. had had consensual “make-up” sex, and, at some point, he
was behind R.B. with his arms draped over and around her
shoulders. He said that after they were done, he cuddled with R.B.
and went to sleep. In explaining why R.B. was fully clothed when
the police and paramedics arrived, he said that he and R.B. had
both worn their underwear during sex and that he did not want
anyone to see R.B. in her underwear.
¶7 As the police waited on R.B.’s autopsy reports, they were
contacted by defendant’s ex-girlfriend, S.E. S.E. told the police that
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based on her experience dating defendant, she believed defendant
may have strangled R.B. Her belief was based on an incident in
2008 when, according to S.E., defendant nearly strangled her to
death during an argument, only to be saved by a friend who had
forced her way into S.E. and defendant’s bedroom.
¶8 The autopsy report later showed that R.B. had died of manual
strangulation.
¶9 The district attorney subsequently charged defendant with
first degree murder — after deliberation as to R.B. and attempted
first degree murder — after deliberation as to S.E. At the end of
trial, at defendant’s request, the court also instructed the jury on
the lesser nonincluded offenses of reckless endangerment and third
degree assault as to S.E. The jury convicted defendant of (1) first
degree murder — after deliberation as to R.B.; (2) attempted first
degree murder — after deliberation as to S.E.; and (3) the lesser
nonincluded offenses.
II. Sequestration
¶ 10 Defendant first contends that the trial court erred when it
allowed R.B.’s mother and brother, who were witnesses for the
3
prosecution, to be present during testimony at defendant’s
preliminary hearing and trial. We are not persuaded.
A. Standard of Review and Applicable Law
¶ 11 Decisions related to the sequestration of witnesses are
reviewed for an abuse of discretion. See People v. Cohn, 160 P.3d
336, 346 (Colo. App. 2007).
¶ 12 Absent limited exceptions not relevant here, CRE 615 provides
that upon the request of a party, the trial court shall order the
exclusion of witnesses from the courtroom “so that they cannot
hear the testimony of other witnesses.” “The purpose of a
sequestration order is to ‘prevent a witness from conforming his [or
her] testimony to that of other witnesses and to discourage
fabrication and collusion.’” People v. Villalobos, 159 P.3d 624, 629
(Colo. App. 2006) (alteration in original) (citations omitted).
¶ 13 However, article II, section 16a of the Colorado Constitution
provides that “surviving immediate family members . . . shall have
the right to be heard when relevant, informed, and present at all
critical stages of the criminal justice process.” The legislature has
codified this right in part 3 of title 24, article 4.1 (the Victims’
Rights Act), and section 24-4.1-302.5(1)(b), C.R.S. 2016, states that
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victims have “[t]he right to be informed of and present for all critical
stages of the criminal justice process as specified in section 24-4.1-
302(2).” See also People v. Coney, 98 P.3d 930, 935 (Colo. App.
2004). As relevant here, section 24-4.1-302(2), C.R.S. 2016, defines
“critical stages” to include preliminary hearings and the defendant’s
trial.
¶ 14 Although “CRE 615 does not provide authority for departing
from the constitution and statute,” Coney, 98 P.3d at 935, section
24-4.1-303(6)(a), C.R.S. 2016, states that “[a] victim . . . may be
present at all critical stages of a criminal proceeding regarding any
crime against such victim unless the court or the district attorney
determines that exclusion of the victim is necessary to protect the
defendant’s right to a fair trial.” (Emphasis added.)
B. Discussion
¶ 15 Based on our review of the record, we discern no abuse of
discretion by the trial court in allowing R.B.’s mother and brother to
be present during testimony at defendant’s preliminary hearing and
trial.
¶ 16 Initially, we note that R.B.’s mother and brother are both
included in the statutory definition of a “victim” under the Victims’
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Rights Act. § 24-4.1-302(5). And because the Victims’ Rights Act
represents a decision on a matter of public policy — here, that
R.B.’s mother and brother have a right to be present during the trial
of her accused killer — the statute controls over CRE 615. See
People v. Wiedemer, 852 P.2d 424, 436 (Colo. 1993) (“In drawing the
distinction between substance and procedure, we have held that in
general, rules adopted to permit the courts to function and function
efficiently are procedural whereas matters of public policy are
substantive and are therefore appropriate subjects for legislation.”);
see also People v. McKenna, 196 Colo. 367, 372-73, 585 P.2d 275,
278-79 (1978) (on substantive matters, a statute controls over a
rule promulgated by the court); Coney, 98 P.3d at 935.
¶ 17 Nonetheless, as defendant points out, section 24-4.1-303(6)(a)
provides a trial court with authority to exclude a deceased victim’s
family members if it “determines that exclusion . . . is necessary to
protect the defendant’s right to a fair trial.” However, while
defendant is correct that the court had authority to exclude R.B.’s
mother and brother, the trial court determined that such exclusion
was not necessary in this case. And based on the reasons given by
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defense counsel for the need to exclude the witnesses, we discern
no abuse of discretion by the trial court in reaching that decision.
¶ 18 At the preliminary hearing, defense counsel contended that
R.B.’s mother and brother should have been excluded from the
courtroom because they were not collateral witnesses and because
“we’ll probably learn through the course of th[e] hearing through
the D.A. investigator . . . that there ha[d] been a lot of rumors and
information being exchanged between various witnesses.” The
prosecutor responded that she did not “know what [defense
counsel] [wa]s referencing in that last portion” and asked that R.B.’s
mother and brother be allowed to remain in the courtroom for the
preliminary hearing. Because the family members were not
scheduled to testify at the hearing, and in light of “the mandate
contained in the Constitution permitting the family to remain in the
courtroom,” the court, relying on Coney, allowed R.B.’s family to
remain.
¶ 19 The court and the parties revisited the issue at trial. Citing
Coney for the proposition that victims have a right to be present
during trial, the court asked defense counsel, “And I guess what I
don’t know from the defense is, what is your specific objection if
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they are here? I’m assuming there are police reports. But did you
have a specific objection or is there an order that we can do?” The
following colloquy then occurred:
[Defense counsel:] Your Honor, I just — Your
Honor, I am just concerned about witnesses,
any witnesses watching testimony of other
witnesses and discussing that testimony with
other witnesses.
...
[Court:] And so you’re just concerned that they
might talk to each other about the witnesses or
what are you concerned about specifically?
[Defense counsel:] Yes. I am concerned about
talking about testimony that they’ve observed
and seen with other witnesses who may testify.
[Court:] And I can admonish them. But what
is the prosecution’s position?
[Prosecutor:] They’ve been instructed to that
part of the sequestration order, that that
would apply to them and they’re not to discuss
either their own testimony or anything that
they would hear.
¶ 20 In ruling on defense counsel’s request, the court stated that in
“balancing . . . the victim’s constitutional right and the defendant’s
constitutional right to due process,” it would allow R.B.’s mother
and brother to watch the trial. However, the court gave both the
following admonishment:
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Whatever you hear in the courtroom, you
cannot tell anyone else, and that’s an order of
the Court which is subject to contempt. And
so you can’t go home at night and tell others,
especially those other people that might testify.
And I would ask you not to talk at all to
anyone about the testimony you hear during
these two weeks, because that could go
through a chain and then somebody that may
testify could hear it from a third party that
you’ve told. So I’m going to ask that you do
not discuss anything you heard in the
courtroom with anyone else until this trial is
over.
And under that scenario, I will allow you then
to sit through the trial.
¶ 21 The court then asked both witnesses if they understood its
order, and both replied that they did.
¶ 22 In this case, defense counsel was unable — at either the
preliminary hearing or defendant’s trial — to articulate any specific
grounds raising concerns that the witnesses would conform their
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testimony.1 And although appellate counsel offers portions of the
mother’s and brother’s testimony that are similar to other
witnesses’ testimony, the trial court had not heard any trial
testimony at the time it made its ruling.2
¶ 23 Lastly, we note that to the extent the mother’s or brother’s
trial testimony was different from the account they gave in their
reports to police, defendant had access to those reports and was
free to impeach the witnesses on that basis.
¶ 24 In sum, in light of (1) defense counsel’s failure to identify any
specific grounds raising concerns about conforming testimony; (2)
the court’s admonishment, which we presume the witnesses
1 In light of the record, even if we assume that we should apply the
various balancing tests applied by other courts, we would reach the
same result. See, e.g., In re Mikhel, 453 F.3d 1137, 1139 (9th Cir.
2006) (per curiam) (“[Under the Federal Crime Victim’s Rights Act,]
[a] district court may exclude a victim-witness from the courtroom if
the court finds by ‘clear and convincing evidence . . . that testimony
by the victim would be materially altered if the victim heard other
testimony at that proceeding.’”) (emphasis added) (citation omitted);
Gabriel v. State, 925 P.2d 234, 236 (Wyo. 1996) (in considering
whether to allow an exception to the rule requiring courts to grant a
defendant’s motion to sequester witnesses, “the standard is whether
good cause is shown that the exemption should not be granted”)
(emphasis added).
2 In any event, as defendant acknowledges, similar testimony may
simply have resulted from the witnesses perceiving the events in the
same way.
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understood and followed, see, e.g., People v. Rhea, 2014 COA 60,
¶ 68; and (3) defendant’s opportunity to cross-examine the
witnesses, we discern no abuse of discretion by the trial court in
allowing R.B.’s mother and brother to be present during testimony
at defendant’s preliminary hearing and trial.
III. Basketball Analogy
¶ 25 Defendant next contends that the trial court committed
reversible error when it used a basketball analogy to explain to the
jury the law of intoxication. We are not persuaded.
A. Additional Background
¶ 26 During voir dire, defense counsel questioned jurors about an
intoxication defense, at which point several jurors expressed their
opinion that a defendant, even if intoxicated, is nonetheless
responsible for his or her actions. For instance, defense counsel
asked a juror, “What about a situation where somebody is . . .
charged with actually killing somebody with intent and after
deliberation, causing the death of another person and that they
claim I’m not responsible because I didn’t mean to do it because I
was so drunk.” The juror responded,
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Well . . . there are different types of murder:
[f]irst-degree murder, you know,
manslaughter, things like that, so it might
lessen the ultimate charge or what they’re
charged with. But I do believe they’re
responsible for their actions. If it’s the
drinking that causes them to commit the
murder, then they’re responsible for the
drinking to begin with.
¶ 27 After a number of similar questions and answers, the trial
court interjected and told the jurors that “[w]e’re not trying to ask,
do you like the law or do you hate the law or, in this situation, what
do you think about that law or that law? It’s just really, whatever it
is, can you follow the law?” After more of the same questioning, the
trial court provided the jury with the following analogy:
The law of intoxication. If we are at a
[basketball] game. Say you’re shooting —
you’re running down the court trying to make
a basket and you jump up and you made a
shot. You intended, at that point, to make a
basket, right?
All right. And so, if you have the intent to
make the basket and you jump up and do it.
By doing that, you’re showing you have that
intent.
If you are intoxicated, as a jury, as you believe
that the person is running down in the
basketball game is so intoxicated, you have to
decide if they’re so intoxicated about they —
whatever the evidence you hear, that they can
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no longer have that intent to shoot the basket
because they’re so intoxicated. So it’s just one
of the elements that the prosecution has to
prove.
And I don’t — I don’t want to go through all the
legal parts of it. And as I said, we don’t know
what the evidence is going to be. We don’t
even know if it’s going to be brought up. I
don’t know. But generally, it just goes to the
intent. It’s one of the elements the prosecution
will have to show.
B. Discussion
¶ 28 Defendant contends that “[t]he court told the jurors they
would need to, in essence, determine whether that player had ‘that
intent to shoot the basket,’ or not due to intoxication.” In doing so,
defendant continues, the court “left out entirely the question of
whether the player had intended to make the basket or not.”
Defendant asserts that in failing to make this distinction, the court
informed the jury that it should be concerned with whether
defendant “acted intentionally, not whether he intended to cause
R.B.’s death.”
¶ 29 As an initial matter, the jury did not necessarily parse the
court’s comments in the same manner as, and draw the same
conclusions that, defendant does on appeal. Furthermore, as the
13
Attorney General points out, the court, in its initial analogy, said,
“You intended, at that point, to make a basket, right?” In light of
this initial comment, it is possible that the jury interpreted the
court’s analogy to mean that intoxication, under appropriate
circumstances, could have negated the hypothetical shooter’s intent
to “make” the basket.
¶ 30 But even if the trial court’s analogy constituted error, reversal
would not be required under the plain error standard of review. See
People v. Carter, 2015 COA 24M, ¶ 13 (assuming without deciding
that the trial court’s reasonable doubt analogy was erroneous, but
concluding that such an error did not require reversal under the
plain error standard).
¶ 31 To establish plain error, defendant must show that the
putative error was both obvious and so substantial that it
undermined the fundamental fairness of the trial itself, casting
serious doubt on the reliability of the judgment of conviction.
People v. Miller, 113 P.3d 743, 750 (Colo. 2005). We conclude that
defendant has failed to establish that the court’s error, if any, was
substantial.
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¶ 32 First, as defendant acknowledges, at the close of evidence, the
trial court correctly instructed the jury that (1) “[t]he evidence
presented . . . has raised the question of self-induced intoxication
with respect to the offense of Murder in the First Degree, and
Criminal Attempt[ed] Murder in the First Degree”; (2) it could
“consider whether or not evidence of self-induced intoxication
negates the existence of the elements of ‘after deliberation and with
intent’”; (3) “[t]he prosecution has the burden of proving all the
elements of the crimes charged beyond a reasonable doubt”; and (4)
if it found “the defendant was intoxicated to such a degree that he
did not act with the required mental state, you should find him not
guilty of that offense.” We presume the jury understood and
followed the trial court’s instructions, and nothing in the record
rebuts that presumption. See Carter, ¶¶ 58-59 (assuming the trial
court’s use of a puzzle analogy to explain reasonable doubt was
erroneous, the division concluded that reversal was not required
under the plain error standard because the court correctly
instructed the jury on the definition of reasonable doubt); see also
People v. Baca, 2015 COA 153, ¶¶ 13-14 (same); People v. Boyd,
2015 COA 109, ¶¶ 12-13 (“[A]ny risk of prejudice here was
15
mitigated by the court’s written jury instructions, which correctly
articulated the burden of proof and the presumption of innocence
and which we presume the jury understood and correctly applied.”)
(cert. granted Mar. 21, 2016); People v. Estes, 2012 COA 41, ¶ 12
(same).
¶ 33 Second, the trial court began its analogy by referencing the
shooter “mak[ing] a basket,” and it ended its analogy by telling the
jury that intoxication “generally . . . goes to the intent,” which is
“one of the elements the prosecution will have to show.” Thus, as
we set forth above, it is possible that the jury interpreted the court’s
analogy to mean that defendant’s intoxication could have negated
his specific intent to cause R.B.’s death.
¶ 34 Lastly, as the Attorney General notes, during closing
arguments, the parties focused on the court’s correct self-induced
intoxication instruction, rather than on the allegedly erroneous
basketball analogy.
¶ 35 For all of these reasons, any error in the trial court’s analogy
would not be so substantial that it would undermine our confidence
in the reliability of the judgment of conviction. See Miller, 113 P.3d
at 750.
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IV. Cross-Examination
¶ 36 Defendant last contends that the trial court erred in
precluding his counsel from asking a prosecution witness, Amanda
DeLeon, whether S.E. had smoked marijuana on the day of the
attempted murder. We are not persuaded.
A. Additional Background
¶ 37 Before trial, defendant filed a motion in limine asking the
court to bar the prosecution from introducing evidence of his drug
use. At a hearing on the motion, the prosecution stated that it did
not intend to introduce such evidence. However, it noted that it
planned to offer for admission photos of defendant’s apartment, and
that a number of those photos “contain[ed] numerous bongs.”
¶ 38 While the parties and the court discussed how to resolve this
problem, defense counsel stated that she might seek to question
prosecution witnesses about their alleged drug use, contending that
such evidence was relevant to the witnesses’ credibility. When the
court asked how that information was relevant to credibility,
counsel responded that the witnesses’ alleged drug use at the time
of the events about which they would testify could have altered the
witnesses’ ability to perceive and recall the events. Referring to
17
R.B.’s murder, the court agreed, saying, “I understand for the night
of the incident, that would be relevant for everybody that was there
if anybody is going to testify about what happened.”
¶ 39 The prosecution called the attempted murder victim, S.E., on
the fifth and sixth days of trial. On direct examination, she said
that defendant had strangled her and did not stop doing so until
her friend, DeLeon, forced her way into S.E. and defendant’s
bedroom and pulled defendant off of her. Although defense counsel
impeached S.E.’s credibility during cross-examination, she did not
ask S.E. whether she had been under the influence of marijuana on
the day of the attempted murder.
¶ 40 The prosecution then called DeLeon. During the prosecutor’s
direct examination, DeLeon said that she did not remember a
number of the details of the incident as she had previously
represented them in an interview with the police. For instance,
DeLeon initially told the police that she heard S.E. screaming for
help and, in response, she (or another individual who was present
at the time) forced her way into the bedroom and pulled defendant
off of S.E. During her direct examination, however, she said that
she only remembered defendant sitting on S.E. to stop S.E. from
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scratching and hitting him; she did not remember (1) the couple
arguing in the bedroom; (2) S.E. calling for help; or (3) forcing her
way into the bedroom. The prosecutor ended her questioning by
asking DeLeon if she had been smoking marijuana on the day of the
attempted murder, and DeLeon responded that she had.
¶ 41 During cross-examination of DeLeon, defense counsel asked
whether DeLeon had been smoking marijuana with S.E. on the day
in question. The prosecutor objected, contending that it was an
improper question because “[y]ou can ask this witness about her
ability to perceive, but you can’t ask her to comment on another
witness’ ability to perceive . . . [s]he can’t comment on that because
that’s not for this witness.” Defense counsel responded that she
was “not asking her to make a comment on [S.E.’s] ability to
perceive. I’m asking her to say whether or not she was smoking
marijuana or not, and the jury can determine whether it’s relevant
to her credibility or not.” The trial court asked defense counsel a
follow-up question: “[I]f you’re not asking whether or not it affected
her ability to perceive, why is it relevant?” Counsel replied that
“that’s a determination for the jury to make, Judge. It’s not a
determination for Ms. DeLeon to determine whether it affects other
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people. . . . How could she determine if it affected [S.E.’s] ability.
The fact that she was using drugs goes to her credibility.”
¶ 42 Ultimately, the trial court sustained the objection. It reasoned
that
[i]f defense had asked . . . the victim, [S.E.],
whether she was smoking marijuana at the
time this occurred, I think that would be
relevant because then they can talk about
whether her perceptions were different or
whatever. It’s only relevant if you can say that
by smoking marijuana, it’s affected her like
she said been smoking all day or been smoking
for three days, or whatever. But right now,
what is the jury going to be left with?
The jury will be left with your scenario that she
had issues with smoking marijuana. They
won’t know how much or her perception
because there’s nobody here to testify what
that was like. It’s just going to hang out there.
And that’s why we did the motion in limine
ahead of time because if you want [to] bring it
up, if you want to do this, you can’t do it
through impeachment, but you can bring it up
in your case-in-chief.
...
I just don’t find that that’s going to be relevant
at this point. And I think it just goes to her
character without any basis.
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B. Standard of Review
¶ 43 Trial courts are vested with broad discretion regarding the
admissibility of evidence, see, e.g., People v. Manyik, 2016 COA 42,
¶ 83, and the extent and type of cross-examination they will allow,
People v. Silva, 987 P.2d 909, 918 (Colo. App. 1999). Accordingly,
we will not disturb a trial court’s decision regarding such matters
absent an abuse of discretion. Manyik, ¶ 83. To establish an abuse
of discretion, a defendant must show that the trial court’s decision
was manifestly arbitrary, unreasonable, or unfair, or was based on
a misunderstanding or misapplication of the law. Id. at ¶ 65.
¶ 44 Defendant preserved the contention he now raises on appeal,
so we apply the harmless error standard to determine if reversal is
required. See Merritt v. People, 842 P.2d 162, 166-67 (Colo. 1992).
C. Applicable Law
¶ 45 “All relevant evidence is admissible, except as otherwise
provided by” the United States or Colorado Constitutions, statute,
or other rule. CRE 402; see also Yusem v. People, 210 P.3d 458,
463 (Colo. 2009). And evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
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determination of the action more probable or less probable than it
would be without the evidence.” CRE 401.
¶ 46 “[W]hether the witness was, at the time of the events as to
which he testifies, under the influence of some drug that could have
affected his perception of those events bears directly on credibility.”
People v. Dunham, 2016 COA 73, ¶ 27. This type of evidence is
generally relevant, then, because “reasonable inquiry regarding
matters probative of the credibility of [a] witness is always relevant
on cross-examination.” People v. Mandez, 997 P.2d 1254, 1267
(Colo. App. 1999).
¶ 47 However, under CRE 403, even relevant evidence “may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
¶ 48 Consistent with CRE 403, “a trial court has wide latitude,
insofar as the Confrontation Clause is concerned, to place
reasonable limits on cross-examination based on concerns about,
for example, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation which is repetitive or only
22
marginally relevant.” Merritt, 842 P.2d at 166. But a trial court
should not excessively limit a defendant’s cross-examination of a
witness regarding the witness’s credibility. Id.
D. Discussion
¶ 49 As an initial matter, we agree with defendant that evidence of
S.E.’s alleged marijuana use on the day of the attempted murder
was relevant. See Dunham, ¶ 27. We do not agree, however, that
the trial court abused its discretion in precluding defense counsel
from asking one witness, DeLeon, whether another witness, S.E.,
was under the influence of marijuana on the day in question.
¶ 50 Although the court did not precisely identify CRE 403 in ruling
on the prosecutor’s objection, the reasons it articulated for
precluding defense counsel’s question suggests that the court
viewed the probative value of DeLeon’s expected answer as being
outweighed by the danger of unfair prejudice and misleading the
jury. And that conclusion — which we agree with — was based on
the procedural posture in which the question was asked.
¶ 51 Evidence of a witness’s drug use is relevant because it bears
on a witness’s perception and memory of an event about which the
witness is testifying. See Dunham, ¶ 27; see also People v. Roberts,
23
37 Colo. App. 490, 491, 553 P.2d 93, 94 (1976) (noting that it is
improper to question a witness about his or her drug addiction
“merely for purposes of attacking the credibility of the witness”).
¶ 52 In this case, defense counsel had a prior opportunity to ask
S.E. whether or not she had been under the influence of marijuana
on the day in question. She did not do so. Instead, she asked a
different witness, DeLeon, that question. And although DeLeon
could have given a simple yes or no answer, as the trial court noted,
and defense counsel acknowledged, DeLeon could not have spoken
to the impact of the alleged marijuana consumption on S.E.’s
perceptions or memory. Thus, based on the procedural posture in
which defense counsel’s question was asked, DeLeon’s answer
would have had little, if any, probative value.
¶ 53 In contrast, DeLeon’s expected answer carried with it the
danger for unfair prejudice and misleading the jury. As the trial
court concluded, absent any testimony connecting S.E.’s putative
marijuana consumption to her perception of, or ability to
remember, the events in question, the “jury w[ould] be left with
[counsel’s] scenario that she had issues with smoking
marijuana. . . . It’s just going to hang out there.” In other words,
24
without an explanation of the effects of the marijuana on that
particular day, there was a danger that the jury would infer that (1)
S.E. was a drug user; and (2) because she was a drug user, her
testimony was generally less credible. And such an inference would
have been improper because evidence of a witness’s “purported
drug addiction” is inadmissible “merely for purposes of attacking
the credibility of the witness.” Roberts, 37 Colo. App. at 491, 553
P.2d at 94.
¶ 54 The propriety of the court’s CRE 403 ruling is reinforced by its
statement to counsel that “if you want to do this, you can’t do it
through impeachment, but you can bring it up in your
case-in-chief.” This statement acknowledges that the probative
value of the evidence of drug use would have been higher if the
question had been asked of S.E., who would then have had an
opportunity to explain the effect of any such drug use on her
perception of, and ability to remember, the attempted murder.
¶ 55 In sum, based on the procedural posture in which it was
asked, we discern no abuse of discretion by the trial court in
precluding defense counsel from questioning DeLeon about S.E.’s
alleged marijuana use.
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V. Conclusion
¶ 56 The judgment is affirmed.
JUDGE TERRY and JUDGE BERGER concur.
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