People v. Boykins

• Decision Date: 20 October 2005
• Docket Number: No. 03CA2278.,03CA2278.
• Citation: 140 P.3d 87
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Willie BOYKINS, Defendant-Appellant.
• Court: Colorado Court of Appeals

140 P.3d 87

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Willie BOYKINS, Defendant-Appellant.

No. 03CA2278.

Colorado Court of Appeals, Div. II.

October 20, 2005.

Rehearing Denied January 12, 2006.

Certiorari Denied July 17, 2006.^*

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John W. Suthers, Attorney General, Amy Elizabeth Richards, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

ROTHENBERG, J.

Defendant, Willie Boykins, appeals the judgment of conviction entered on a jury verdict finding him guilty of conspiracy to possess a schedule II controlled substance, § 18-18-405, C.R.S.2005. We affirm.

I. Background

Police officers in Grand Junction arrested a passenger on a bus coming from Los Angeles for possession of a schedule II controlled substance, PCP. The passenger told the officers that the PCP belonged to defendant, who was traveling on the same bus using a false name, "Mike"; that he and defendant had flown from Chicago to Los Angeles the day before, where defendant negotiated the drug purchase; and that they were returning to Chicago together. The passenger described defendant as an African-American male, six feet tall, weighing 260 pounds, who was sitting a few rows in front of him on the bus.

Based on this information, the officers contacted the police department in Frisco to stop the bus and detain defendant.

Frisco officers stopped the bus and asked defendant to exit the bus and speak with them. The officers and defendant went into the bus terminal lobby, where they asked defendant if they could look at his bus ticket and in his duffel bag. The bus ticket was issued to a Michael Johnson, and the officers found a post office receipt in defendant's duffel bag. Defendant was arrested and convicted of the above offense.

II. Motion to Suppress

Defendant first contends the trial court erred in denying his motion to suppress the bus ticket and postal money order receipt taken from him by the Frisco officers. He maintains that removing him from the bus and questioning him in Frisco was a seizure unsupported by probable cause, and that the evidence taken from him was the fruit of that unlawful seizure. We disagree.

In reviewing a suppression ruling, we defer to the trial court's findings of fact, which will not be overturned if supported by competent evidence in the record. However, we apply a de novo standard of review to ascertain whether the trial court's legal conclusions are supported by sufficient evidence and whether the court applied the correct legal standard. People v. Syrie, 101 P.3d 219 (Colo.2004).

Colorado recognizes three categories of police-citizen encounters: (1) arrests, (2) investigatory stops, and (3) consensual encounters. An arrest must be justified by probable cause, while an investigatory stop requires only particularized suspicion. Consensual encounters are not afforded constitutional protections. People v. Salazar, 964 P.2d 502 (Colo.1998).

"Probable cause to arrest exists when the objective facts and circumstances available to a reasonably cautious officer warrant the belief that an offense has been or is being committed by the person arrested." People v. Alexander, 797 P.2d 1250, 1253-54 (Colo.1990)(quoting People v. Freeman, 668 P.2d 1371, 1377 (Colo.1983)).

Here, the record supports the trial court's findings that the passenger had identified defendant by his name and his alias, had told the officers defendant had negotiated the drug deal for the PCP, had said he and defendant were en route to Chicago, and had described defendant's physical characteristics and location on the bus.

Given these facts, we agree with the trial court that the officers had reasonable suspicion to stop the bus to investigate further, to detain defendant, and to request permission to see his bus ticket. Once the officers learned the bus ticket was issued to a Michael Johnson, they had probable cause to arrest defendant. Accordingly, we conclude the court did not err in denying defendant's motion to suppress evidence.

III. Jurors' Difficulty in Observing Witnesses and Defendant

Defendant next contends the trial court took inadequate remedial actions to safeguard his right of confrontation after some jurors expressed difficulties observing defendant and the witnesses during trial, and he argues that the trial court's inaction resulted in structural error. We agree the trial court's response was inadequate but conclude reversal is not warranted.

A. Rights under Confrontation Clause

The Confrontation Clauses of the United States and Colorado Constitutions guarantee all defendants the right to confront and cross-examine witnesses. U.S. Const. amend. VI; Colo. Const. art. II, § 16. The Confrontation Clauses ensure that testimony offered against an accused is reliable. People v. Fry, 92 P.3d 970 (Colo.2004). Testimony is presumed to be more reliable when it is given under oath at trial where the witnesses are subject to cross-examination and the jury can observe each witness's demeanor. People v. Fry, supra.

In Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988), the Court emphasized that the right of confrontation "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."

Two years later, in Maryland v. Craig, 497 U.S. 836, 851, 110 S.Ct. 3157, 3166, 111 L.Ed.2d 666 (1990), the Court upheld a Maryland statutory procedure which prevented a child witness from seeing the defendant as the witness testified at trial. However, in doing so, the Court found it "significant" that:

Maryland's procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation—oath, cross-examination, and observation of the witness' demeanor—adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition.

Maryland v. Craig, 497 U.S. at 851, 110 S.Ct. at 3166 (emphasis added; citations omitted).

Later, in Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), in his concurring opinion Justice Kennedy explained the importance of viewing the demeanor of the accused:

It is a fundamental assumption of the adversary system that the trier of fact observes the accused throughout the trial, while the accused is either on the stand or sitting at the defense table. This assumption derives from the right to be present at trial, which in turn derives from the right to testify and rights under the Confrontation Clause. At all stages of the proceedings, the defendant's behavior, manner, facial expressions, and emotional responses, or their absence, combine to make an overall impression on the trier of fact, an impression that can have a powerful influence on the outcome of the trial.

Riggins v. Nevada, supra, 504 U.S. at 142, 112 S.Ct. at 1819 (emphasis added; citations omitted); see Thomas v. People, 803 P.2d 144 (Colo.1990); People v. McClure, 779 P.2d 864, 866 (Colo.1989)(quoting People v. Dement, 661 P.2d 675, 680 (Colo.1983): "The confrontation right and hearsay rules stem from the same roots and are designed to protect similar interests based on the premise that testimony is much more reliable when given under oath at trial, where the declarant is subject to cross-examination and the jury may observe his demeanor." (emphasis added)); People v. Welsh, 58 P.3d 1065, 1073-74 (Colo.App.2002)("The purposes of the right of confrontation are to prevent conviction by affidavit, to permit cross-examination as a tool for testing the witness' statements and recollections, and to allow the jury to judge the demeanor of the witness and thereby better assess credibility." (emphasis added)), aff'd, 80 P.3d 296 (Colo.2003).

Thus, the right to cross-examine witnesses is an indispensable component of the Confrontation Clause, and includes the right of an accused to have the jury observe his or her demeanor, as well as that of the witnesses, during trial. But see Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)( where the defendant persisted in disruptive conduct, he lost his constitutional right to be present throughout his trial, and his removal from courtroom and proceeding with trial in his absence until he promised to conduct himself properly held not to be unconstitutional).

Here, the jurors notified the court on the second day of trial that some of them had difficulty observing defendant and the prosecution's first two witnesses. There is no explanation why they were having this difficulty, but it is undisputed that the ability of some jurors to see and evaluate defendant and the witnesses' demeanor was impaired for part of the trial. This was a violation of defendant's right to confrontation.

Defendant contends the trial court's response was inadequate because, after learning of the jurors' difficulty, the court did not inquire further to determine the nature of the problem. We agree the court should have informed the jury that it was their duty to observe all of the witnesses at trial, and that it was the court's...