People v. Lopez, 121516 COCA, 13CA1600

Docket Nº:13CA1600
Opinion Judge:BOORAS JUDGE
Party Name:The People of the State of Colorado, Plaintiff-Appellee, v. Corey Anthony Lopez, Defendant-Appellant.
Attorney: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
Judge Panel:JUDGE TERRY and JUDGE BERGER concur.
Case Date:December 15, 2016
Court:Court of Appeals of Colorado, Seventh Division
 
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2016COA179

The People of the State of Colorado, Plaintiff-Appellee,

v.

Corey Anthony Lopez, Defendant-Appellant.

No. 13CA1600

Court of Appeals of Colorado, Seventh Division

December 15, 2016

Jefferson County District Court No. 12CR1974 Honorable Christie A. Bachmeyer, Judge

JUDGMENT AFFIRMED

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

OPINION

BOORAS JUDGE

¶ 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 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 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 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 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' 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...

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