Margerum v. People

• Decision Date: 09 December 2019
• Docket Number: Supreme Court Case No. 18SC394
• Citation: 454 P.3d 236
• Parties: Lance Webster MARGERUM, Petitioner v. The PEOPLE of the State of Colorado, Respondent
• Court: Colorado Supreme Court

454 P.3d 236

Lance Webster MARGERUM, Petitioner

v.The PEOPLE of the State of Colorado, Respondent

Supreme Court Case No. 18SC394

Supreme Court of Colorado.

December 9, 2019

Attorneys for Petitioner: Megan A. Ring, Public Defender, Meredith K. Rose, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court

¶1 While in a friend’s apartment, Lance Margerum made sexual advances towards E.S. When she rebuffed him, he pushed her onto a bed and began kissing and groping her. E.S. fought back and promised that she would not tell anyone, and Margerum allowed her to leave. Margerum then invited his sister, T.M., to the apartment to pick up some clothes. When she arrived, Margerum grabbed her, choked her, and punched her. E.S. testified at Margerum’s trial while she was on probation for an unrelated offense. The trial court refused to allow Margerum to impeach E.S.’s credibility based on her probationary status. The jury found Margerum guilty of unlawful sexual contact with respect to E.S. and both third-degree assault and felony menacing with respect to T.M. The court of appeals affirmed Margerum’s convictions. People v. Margerum , 2018 COA 52, ¶ 47, ––– P.3d ––––.

¶2 Margerum now argues that the trial court’s refusal to allow defense counsel to impeach E.S.’s credibility based on her probationary status requires reversal. He also argues that he cannot be convicted of both assault and menacing based on the same conduct. Therefore, we must answer two questions here: (1) whether a witness’s credibility may be impeached based on her probationary status at the time she testifies; and (2) whether Margerum may be convicted of both assault and menacing based on the same conduct. Our answer to both of those questions is yes. But because we conclude that the trial court’s error in not allowing defense counsel to impeach E.S. based on her probationary status was harmless, we conclude that reversal is not required. Accordingly, we affirm the opinion of the court of appeals on different grounds.

I. Facts and Procedural History

¶3 Margerum often slept on his friend’s couch. One day, Margerum arrived at his friend’s apartment when his friend’s fiancée, E.S., was there alone. Margerum propositioned E.S., and when she refused, he pushed her onto a bed and began kissing her, groping her, and attempting to remove her clothes. E.S. pushed and hit Margerum until he stopped. Margerum allowed E.S. to leave after she convinced him that she would not tell anyone about what had happened. Margerum then contacted his sister, T.M., and told her to come to the apartment so that he could give her some clothes. Once T.M. arrived at the apartment, she discovered that Margerum did not have any clothes for her, and she turned to leave. Margerum then came up behind her, put her in a chokehold, and began punching her. After a prolonged struggle, T.M. hit Margerum and escaped. As a result of these incidents, the People charged Margerum with several offenses: unlawful sexual contact and third-degree assault of E.S.; and unlawful sexual contact, second-degree assault, and felony menacing of T.M.

¶4 E.S. testified at Margerum’s trial. At that time, she was on probation for misdemeanor forgery. Defense counsel sought to impeach E.S.’s credibility with her forgery conviction and the fact that she was currently on probation. The trial court allowed defense counsel to cross-examine E.S. about the facts underlying her forgery conviction, but it did not allow cross-examination concerning the conviction itself or the fact that E.S. was on probation when she testified.

¶5 Ultimately, with respect to E.S., the jury found Margerum guilty of unlawful sexual contact but acquitted him of third-degree assault. As to T.M., the jury found Margerum guilty of third-degree assault and felony menacing but acquitted him of second-degree assault and unlawful sexual contact. Subsequently, Margerum was sentenced to jail for one year for third-degree assault and for one year for unlawful sexual contact and to the Department of Corrections for six years for felony menacing,¹ all to run concurrently. He appealed, arguing that: (1) the trial court erred in prohibiting him from impeaching E.S. with respect to her probationary status; and (2) the evidence was insufficient to support his convictions for both assault and menacing because those convictions stemmed from the same conduct.

¶6 Regarding impeachment, the court of appeals concluded that probationary status is not always relevant as evidence of bias. Margerum , ¶ 47. The court explained that the admissibility of a witness’s probationary status for purposes of impeachment is predicated on some logical connection between her probationary status and her motivation for testifying. Id. And because the court of appeals determined that such a logical connection was lacking in this case, it concluded that the trial court did not err in disallowing the impeachment inquiry. Id. at ¶¶ 52 –53.

¶7 As to the sufficiency of the evidence, the court of appeals determined that the menacing statute does not require that the victim experience fear prior to any injury. Id. at ¶ 61. And because the court determined that present injury can serve as the basis for fear of imminent serious bodily injury, it concluded that the evidence against Margerum was sufficient to support convictions for both assault and menacing based on the same conduct. Id. at ¶¶ 60, 69. Margerum then petitioned this court, and we granted certiorari.² We now affirm, albeit on different grounds regarding the impeachment issue.

II. Confrontation and Probationary Status

¶8 To answer the question of whether a witness’s probationary status is admissible for impeachment purposes, we first examine U.S. Supreme Court precedent regarding a criminal defendant’s right to confront the witnesses against him. Then, we look to how Colorado has resolved issues regarding confrontation as it relates to a witness’s probationary status and the standard to impeach a witness’s credibility based on that status. After doing so, we conclude that a witness’s probationary status is always relevant when the witness is on probation with the State and testifies for the prosecution because the witness is in a vulnerable position. Hence, the failure to allow the impeachment inquiry here was error. But we conclude that, in this instance, the error was harmless and thus, does not require reversal.

A. Standard of Review

¶9 Trial courts have discretion to impose limits on cross-examination of witnesses, and we will not disturb rulings on those limits absent an abuse of that discretion. People v. Raffaelli , 647 P.2d 230, 233–34 (Colo. 1982) ; People v. Conyac , 2014 COA 8M, ¶ 91, 361 P.3d 1005, 1023. "A trial court abuses its discretion when it misapplies the law." People v. Jefferson , 2017 CO 35, ¶ 25, 393 P.3d 493, 499.

B. Law

¶10 At trial, criminal defendants are guaranteed the right to confront the witnesses against them. U.S. Const. amend VI ; Colo. Const. art. II, § 16. This right is primarily secured through cross-examination. See Davis v. Alaska , 415 U.S. 308, 315–16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Cross-examination allows a party to interrogate a witness’s "perceptions and memory" and is also "the principal means by which the believability of a witness and the truth of his testimony are tested." Id. at 316, 94 S.Ct. 1105. In that vein, "the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness." Id. Any witness’s credibility can be attacked by unearthing any potential source of impartiality, such as bias or an ulterior motive. See id. Moreover, a prosecution witness’s partiality may be affected by her being on probation because the witness is in a "vulnerable status as a probationer." Id. at 318, 94 S.Ct. 1105. And the partiality of a witness is always relevant. Id. at 316, 94 S.Ct. 1105.

¶11 It is well-settled in Colorado that, when a witness testifies against a party, the party has a right to impeach that witness’s credibility. See Tollifson v. People , 49 Colo. 219, 112 P. 794, 797 (Colo. 1910). More specifically, we have recognized that "a court must allow broad cross-examination of a prosecution witness as to bias, prejudice and motivation for testifying." People v. Bowman , 669 P.2d 1369, 1375 (Colo. 1983). This "need for wide latitude in cross-examination is also present when a prosecution witness is on probation and his testimony could be prompted by fear or concern for possible jeopardy to his probationary status." Id. But we are not only concerned with fear motivating a prosecution witness to give favorable testimony; we must also consider whether the witness "might be influenced by a promise of, or hope or expectation of, immunity or leniency." People v. King , 179 Colo. 94, 498 P.2d 1142, 1144–45 (1972). And when a prosecution witness is on probation, the key question is whether there exists a "might have been influenced nexus" between the witness’s probationary status and her potentially biased motive for testifying. See Kinney v. People , 187 P.3d 548, 560 (2008) (quotation omitted).

¶12 We conclude that this nexus always exists when a prosecution witness is on probation in the same sovereign—here, the State of Colorado—for three reasons.³ First, a prosecution witness who is on probation in the same state court system in which she is testifying is in a vulnerable position. That witness’s ability to remain on probation is potentially in jeopardy and the threat of probation revocation—whether real or merely perceived—creates an incentive for a witness to try to curry favor with the prosecution who can seek the revocation of that witness’s probation. Second, as we explained in Kinney when discussing a "might have been influenced" nexus requirement, the desire to potentially curry favor with a...