People v. Clark, Court of Appeals No. 10CA1184

Citation370 P.3d 197
Decision Date23 April 2015
Docket NumberCourt of Appeals No. 10CA1184
Parties The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Willie CLARK, Defendant–Appellant.
CourtCourt of Appeals of Colorado

Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for PlaintiffAppellee.

Samler and Whitson, P.C., Eric A. Samler, Denver, Colorado, for DefendantAppellant.

Opinion by JUDGE CASEBOLT

¶ 1 Defendant, Willie Clark, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of murder (extreme indifference), one count of murder (after deliberation), sixteen counts of attempted first degree murder, two counts of second degree assault, sixteen counts of violent crime, and one count of possession of a weapon by a previous offender. He also appeals the trial court's denial of his motion for new trial. We affirm in part, reverse in part, and remand with directions.

I. Background

¶ 2 Fifteen gunshots rang out through the streets of downtown Denver in the early morning hours of New Year's Day 2007. Those gunshots, aimed at an oversized limousine from a white Chevrolet Tahoe, left Darrent Williams, a member of the Denver Broncos football team, dead; two additional people wounded

; and fourteen others uninjured but shaken.

¶ 3 The prosecution's evidence showed that the victims had celebrated New Year's Eve in the VIP section of a night club in the vicinity of the Golden Triangle area of downtown Denver. Defendant and his friend, Daniel Harris, were also in the VIP section that evening. Shortly before the clock struck midnight, someone opened a bottle of champagne and began spraying it throughout the VIP section. After being sprayed, defendant and Harris started a verbal altercation with the victims, and Harris began shouting "Eastside" and "Tre Tre Crips." Defendant and Harris were then removed from the VIP section.

¶ 4 Approximately two hours later, the club closed and the partygoers streamed into the street. There, some members of the victims' group engaged in another, largely verbal, altercation with several people, including defendant. During that altercation, someone continued to yell "Eastside" and "Tre Tre Crips." Some of the evidence presented suggested that Harris was the person doing the yelling. Eventually, the victims departed in a limousine.

¶ 5 Harris testified for the prosecution at defendant's trial after having secured immunity from prosecution in this case and several other cases. According to Harris, defendant was the driver of the Tahoe, and he followed the victims' limousine after it left the nightclub. Harris stated that he was riding in the rear passenger seat as the Tahoe overtook the victims' limousine, and he saw defendant lean across the front console and fire shots from the passenger side window into the side of the limousine. Harris testified that only one gun was used, but the evidence established that, of the shots that hit the limousine, some had been fired from a .40 caliber handgun, and others had come from a .45 caliber weapon.

¶ 6 Two security guards at the nightclub testified to their observations of a green SUV that evening. One saw an individual, perhaps matching Harris's description, get into the green SUV.

¶ 7 At trial, a person who lived at the Parkway Condominiums in the Golden Triangle area testified that he was on a deck outside his eleventh-floor apartment at around 2:15 a.m. on New Year's Day when he heard between eight and ten "pops." Shortly thereafter, he saw a green or brown SUV driving at a high rate of speed traveling on the boulevard next to his apartment complex.

¶ 8 The prosecution's theory at trial centered on the assertion that defendant was a member of the Tre Tre Crips gang and, on the evening of the incident, felt that he, his gang, or a fellow member of his gang had been disrespected by the victims. Because of his allegiance to the gang, the theory posited, defendant felt compelled to commit the shooting.

¶ 9 The prosecution presented evidence that defendant confessed his involvement in the shooting to Veronica Garcia, Vernone Edwards, Julian Vigil, and J.G. (a cellmate, while defendant was imprisoned pretrial). The prosecution also introduced a letter written by defendant appearing to acknowledge his role as the shooter.

¶ 10 Defendant posited that Harris had carried out the shooting from the green SUV. He argued that Harris had provided false information to secure a favorable plea deal from the prosecution.

¶ 11 A jury convicted defendant on all of the counts charged.

II. Evidentiary Issues

¶ 12 Defendant contends the trial court erred in admitting or rejecting certain evidence. Specifically, defendant argues that the court: (1) erred by admitting evidence and testimony regarding his gang membership, as well as expert testimony about gang origin, structure, psychology, hierarchy, and presence in Denver; (2) erred by limiting his cross-examination of several witnesses; (3) erred by admitting Harris's prior consistent statement; and (4) erred by refusing to admit grand jury testimony of two witnesses who refused to testify at trial. We address and reject each contention in turn.

A. Evidence of Gang Affiliation
1. Preservation and Standard of Review

¶ 13 The parties agree that defendant adequately preserved his arguments.

¶ 14 "A trial court has broad discretion in ruling on the admissibility of evidence." People v. Beilke, 232 P.3d 146, 149 (Colo.App.2009)

. Thus, we review a trial court's evidentiary rulings for an abuse of discretion. Dunlap v. People, 173 P.3d 1054, 1097 (Colo.2007). A trial court abuses its discretion when its evidentiary ruling "was manifestly arbitrary, unreasonable, or unfair." Yusem v. People, 210 P.3d 458, 463 (Colo.2009).

2. Law

¶ 15 "Evidence about gang culture is admissible if relevant to explain a circumstance of the crime, ... to show a motive for the crime itself, or to understand a witness's change in statement or reluctance to testify." People v. James, 117 P.3d 91, 94 (Colo.App.2004)

; see also People v. Webster, 987 P.2d 836, 840 (Colo.App.1998) ("Evidence of the defendant's affiliation with a gang may be admitted when it is relevant to proving a motive for the crime."); People v. Moya, 899 P.2d 212, 218 (Colo.App.1994) ( "[B]ecause [the] defendant's gang affiliation could have shown a motive to commit the crime, we conclude that such evidence was properly admitted."); People v. Mendoza, 876 P.2d 98, 102 (Colo.App.1994) ("Proof of intent to kill was a necessary part of the prosecution's case, and the evidence of the defendant's gang affiliation, which tended to prove the existence of a motive for killing the victim, was relevant for purposes of CRE 401.").

¶ 16 "Still, because ‘gangs are regarded with considerable disfavor by our society,’ gang-related evidence must be ‘admitted with care.’ " People v. Trujillo, 2014 COA 72, ¶ 72, 338 P.3d 1039

(quoting People v. Morales, 359 Ill.Dec. 160, 966 N.E.2d 481, 492 (Ill.App.Ct.2012) ). "Hence, courts must be vigilant in guarding against the improper use of gang affiliation evidence as a backdoor means of introducing character evidence by associating the defendant with a gang and describing the gang's bad acts.’ " Id. (quoting Gutierrez v. State, 423 Md. 476, 32 A.3d 2, 13 (2011) ).

¶ 17 Evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable. CRE 401

. In criminal cases, evidence is relevant if the evidence makes it more or less probable that a criminal act occurred, the defendant was the perpetrator, or the defendant acted with the necessary criminal intent. People v. Cordova, 293 P.3d 114, 118 (Colo.App.2011). All relevant evidence is admissible subject to certain constitutional provisions, statutes, and rules of evidence. Id.

¶ 18 "[R]elevant evidence can be excluded if ... its probative value is substantially outweighed by the danger of unfair prejudice." Trujillo, ¶ 56

(citing CRE 403 ). Evidence is unfairly prejudicial if it has an " ‘undue tendency to suggest a decision on an improper basis ... such as sympathy, hatred, contempt, retribution, or horror.’ " James, 117 P.3d at 93–94 (quoting Masters v. People, 58 P.3d 979, 1001 (Colo.2002) ). "In reviewing the trial court's determination, we assume the maximum probative value that a reasonable fact finder might give the evidence and the minimum unfair prejudice to be reasonably expected." Id. at 94.

¶ 19 Relevant evidence may also be excluded under CRE 404(b)

if "it is used to prove the character of a person in order to show that he or she acted in conformity with that character on a particular occasion." Trujillo, ¶ 56 (citing Yusem, 210 P.3d at 463 ).

¶ 20 The distinction between admissible evidence of motive and inadmissible character evidence " ‘is often subtle.’ " Masters, 58 P.3d at 998

(quoting People v. Hoffman, 225 Mich.App. 103, 570 N.W.2d 146, 148 (1997) ). In certain situations, evidence that would be otherwise labeled inadmissible character evidence " ‘establishes more than character or propensity’ " because it " ‘tends to show why the defendant perpetrated a seemingly random and inexplicable attack.’ " Id. at 999 (quoting Hoffman, 570 N.W.2d at 149 ). Subject to CRE 403, this evidence is admissible because, without it, " ‘the jurors may have found it difficult to believe ... that [the] defendant committed the depraved and otherwise inexplicable actions.’ " Id .

(quoting Hoffman, 570 N.W.2d at 149–50 ).

3. Application

¶ 21 The trial court denied defendant's motion in limine seeking to exclude evidence of gang affiliation, finding that the case "is permeated with gang references," and that "to excise any information about gang membership or the organization of gangs

¶ 22 ... is not only impossible, but it's completely unsupportable," because the case and gang evidence involved "a huge deal about the respect issues [and] saving-face issues."

¶ 23 Defendant contends that none of the evidence regarding his...

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