People v. James, 99CA0568.

CourtCourt of Appeals of Colorado
Citation40 P.3d 36
Docket NumberNo. 99CA0568.,99CA0568.
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eric JAMES, Defendant-Appellant.
Decision Date26 April 2001

Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Law Firm of Douglas S. Joffe, Douglas S. Joffe, Theodore B. Peak, Denver, CO, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Eric James, appeals the judgment of conviction entered upon jury verdicts finding him guilty of 23 charges, including violation of the Colorado Organized Crime Control Act (COCCA), conspiracy to commit second degree burglary, forgery, theft, second degree burglary, criminal impersonation, theft by receiving, contributing to the delinquency of a minor, and a finding by the court that he is a habitual criminal. We affirm.

Defendant, an alleged former gang member, had become a counselor at a community center providing nighttime activities for youth. While working there, he came into contact with several young women, three of whom were minors. He recruited them to participate in a scheme to steal cash, computers, guns, and other merchandise using forged checks that he had stolen. Defendant's wife and others also participated in the scheme.

Many of the participants eventually pleaded guilty to charges related to their roles in the scheme and received minor sentences and immunity from further prosecution in exchange for their testimony in the case against defendant.


Defendant first contends the trial court erred when, during its remarks to the venire, it stated that defendant was in custody and was wearing a leg restraint security device. We disagree.

The presumption of innocence requires the garb of innocence. Every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent person, except as the necessary safety and decorum of the court may otherwise require. Thus, compelling a defendant to stand trial wearing identifiable prison clothing violates the right to wear the "garb of innocence." Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946). Such a practice is inherently prejudicial. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

When a defendant appears manacled or restrained before a jury, however, reversible error results only if the restraints are unnecessary and prejudicial. People v. Dillon, 655 P.2d 841 (Colo.1982); Hamrick v. People, 624 P.2d 1320 (Colo.1981); People v. Schlegel, 622 P.2d 98 (Colo.App.1980).

Here, defendant was wearing a hidden leg restraint, and a sheriff's deputy was sitting near him during the court's remarks to the venire. The court stated:

I would describe to you that the defendant is in custody, which means he has not posted a bond in this case. This is not evidence of the defendant's guilt. It does not change the prosecution's burden of proving the case. It does not change the burden of proof, that is, that the case needs to be proven beyond a reasonable doubt. It does not change the presumption that the defendant is innocent unless proven guilty.
You may notice that the defendant limps. That means that he has a leg brace as a security device rather than some other restraint.

At the next break in the proceedings, defense counsel asserted that the court's comments were prejudicial and asked the court to replace the venire. The court denied the request, stating, "I think it's just easier to clarify that [defendant is in custody and restrained] rather than to somehow pretend something that we know is obvious."

We do not condone the court's clearly unnecessary comments regarding defendant's custodial status and his physical restraint. However, we note that they were couched within instructions regarding the need to favor defendant with the presumption of innocence and the prosecution's burden of proof. See United States v. Milner, 962 F.2d 908 (9th Cir.1992)

(curative instruction that custody was no indication of guilt sanitized court's improper voir dire comments regarding defendant's custodial status and security risk).

In addition, defense counsel had not yet conducted voir dire of the jury panel when the court made its comments. Counsel could have queried the panel regarding any potential prejudice the court's comments had created. Defense counsel did not do so, and we find no evidence of actual prejudice in the record. Indeed, we note that the jury ultimately acquitted defendant of six of the charges.

Further, the comments were made only once, defendant was dressed in street clothes, and the restraint was hidden beneath his clothing. Therefore, unlike a situation in which a defendant's wearing of prison garb or visible restraints is a constant reminder that he or she is a prisoner, the comments here were not likely to have had a lasting effect upon the jury, and therefore were not inherently prejudicial. See Estelle v. Williams, supra; see also Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)

(presence of extra uniformed guards at trial not so inherently prejudicial as to deny defendant right to fair trial); cf. People v. Rogers, 800 P.2d 1327 (Colo.App.1990) (court's practice of personally escorting child witness to stand inherently prejudicial to accused, despite curative instruction).

Hence, we conclude the trial court's comments and its failure to dismiss the venire did not constitute reversible error.

To the extent defendant contends that the trial court erred in requiring him to wear a restraint, we reject the contention.

Restraints are permitted when a court determines, in its discretion, that they are necessary to ensure that a defendant remains in custody, will not endanger court personnel or others in the courtroom, and will not disrupt the trial. Only use of restraints that is both unnecessary and prejudicial constitutes reversible error. See People v. Melanson, 937 P.2d 826 (Colo.App.1996)


Here, even if we assume, without deciding, that a restraint was unnecessary, or that the trial court erred in failing to make the necessary findings to justify restraint, see Lucero v. Lundquist, 196 Colo. 95, 580 P.2d 1245 (1978),

as noted above, we conclude that the use of restraints did not prejudice defendant. Accordingly, we find no reversible error.


Defendant asserts that the trial court erred by berating defense counsel within the hearing of the jury and by improperly terminating cross-examination of a witness. We disagree.


Defendant first contends the trial court erred in accusing defense counsel of lying to the court during cross-examination of a prosecution witness. We are not persuaded.

A defendant has the right to cross-examine a witness regarding a plea agreement to establish possible bias and motive for testifying. However, the trial court has a duty to ensure that the interrogation of a witness and presentation of evidence is effective for ascertaining the truth. CRE 611(a). Therefore, the trial court has discretion to preclude cross-examination on aspects of a plea agreement that are irrelevant, immaterial, or misleading. See CRE 402, 403, 611(b); Merritt v. People, 842 P.2d 162 (Colo.1992); People v. Montoya, 942 P.2d 1287 (Colo.App. 1996).

Absent an abuse of discretion, a trial court's decision concerning the scope of cross-examination will not be disturbed on appeal. People v. Raffaelli, 647 P.2d 230 (Colo.1982); People v. Marion, 941 P.2d 287 (Colo.App.1996).

A trial court also has a duty to exercise restraint in its conduct and words so as to maintain an impartial forum. However, acts that merely cause disappointment, discomfort, or embarrassment to counsel in the presence of the jury, without more, are rarely prejudicial. Such comments and conduct are grounds for reversal only if they are so far removed from requisite impartiality as to deny a defendant the right to a fair trial. People v. Coria, 937 P.2d 386 (Colo.1997).

Here, a witness who had been a participant in the criminal scheme admitted on defense cross-examination that he had pleaded guilty to only one of three felony charges and that he had been given a minor sentence. He also acknowledged that he had received immunity from further prosecution in exchange for his testimony. Intending to further call into question the witness' motive for testifying, defense counsel began a line of questioning to demonstrate that, if the witness had not entered into a plea agreement, he could have been convicted of three felonies and then prosecuted as a habitual offender.

As defense counsel knew, the witness had been convicted of only one felony arising from this scheme and had no previous felony convictions. Hence, he was not subject to habitual criminal prosecution. Thus, it was misleading for defense counsel to pursue questioning that suggested otherwise. Accordingly, the trial court acted within its discretion in prohibiting such questions.

Further, although the trial court's choice of words could have been better, the court did not overstep the bounds of required judicial restraint. As the court later told defense counsel in chambers, counsel's statements and questions regarding the witness' potential prosecution as a habitual criminal were obviously misleading. See People v. Coria, supra

(court's comment about defense counsel knowingly and improperly interrupting the flow of the prosecutor's closing argument should not have been made but did not deny defendant a fair trial).

Moreover, the court's subsequent instruction to the jury that exchanges between the court and counsel were not evidence also blunted any possible prejudice that the court's choice of words may have caused.


Defendant also asserts the trial court erred when it terminated cross-examination of the witness. We find no reversible error.

A trial court may terminate cross-examination altogether if it is clear that further testimony...

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