People v. Robles

• Decision Date: 31 March 2011
• Docket Number: No. 06CA0934.,06CA0934.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Steven ROBLES, Defendant–Appellant.
• Court: Colorado Court of Appeals

302 P.3d 269

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Steven ROBLES, Defendant–Appellant.

No. 06CA0934.

Colorado Court of Appeals, Div. V.

March 31, 2011.

John W. Suthers, Attorney General, John J. Fuerst, III, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Law Firm of Richard A. Hostetler, Richard A. Hostetler, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge J. JONES.

Defendant, Steven Robles, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree felony murder, second degree kidnapping, harassment by stalking, and a crime of violence. We affirm.

I. Background

The prosecution presented evidence showing the following.

Defendant and the victim, J.E., began dating in 2000. They had an “off-again on-again” relationship for the next two years, during which defendant physically abused J.E. By September 2002, J.E. had attempted to end her relationship with defendant and had begun dating someone else.

Between September 19 and 24, 2002, defendant persistently called J.E., followed her, and publicly confronted her several times. During certain of these confrontations, defendant yelled at J.E., tried to physically force her into his car or out of the car she was in, and stole her purse and cell phone. Several of J.E.'s friends testified that during that time, J.E. said she was afraid of defendant.

One of J.E.'s friends, N.V., testified that on the evening of September 24 she was on the phone with J.E. when J.E. suddenly said she would have to call her back and hung up. N.V. quickly called J.E. back, but no one answered. She continued to call until J.E.'s four-year-old son answered and told her that J.E. “went out the window.”

J.E. did not report to work the next day, and her brother reported her missing to the police. The only person who testified as to having seen J.E. alive after September 24 was A.R., with whom defendant was then living. A.R. said that when he came home from work on September 25, he saw J.E. and defendant sitting together on the couch, watching television.

J.E.'s body was found near an I–76 frontage road in Weld County on September 26, 2002. She had been shot several times in the head and body.

The People charged defendant with first degree murder, first degree felony murder, second degree kidnapping, harassment by stalking, sexual assault, and a crime of violence for events occurring between September 18 and September 26, 2002. A jury convicted defendant of the offenses noted in the opening paragraph of this opinion. The district court sentenced defendant to a term of life without parole in the custody of the Department of Corrections.

II. Discussion

On appeal, defendant contends that the district court erred by (1) denying his motion either to strike A.R. as a witness or to continue the trial; (2) impaneling an “anonymous” jury; (3) admitting certain of J.E.'s statements through the testimony of three witnesses; (4) denying his motion for a mistrial based on prosecutorial misconduct in closing argument; (5) improperly instructing the jury on the appropriate standard for reasonable doubt; (6) insufficiently responding to one of the deliberating jury's questions; and (7) failing to properly investigate alleged juror misconduct. We address and reject each of these contentions in turn.

A. Witness Disclosure

Defendant contends that the district court erred by denying his motion either to strike A.R. as a witness or to continue the trial. He argues that prosecutors told his counsel too late that A.R. had been located and would testify.

Police initially interviewed A.R. in October 2002. Both parties had access to the recording of that interview. In October 2003, the prosecution formally identified A.R. as a prosecution witness and disclosed his address in a list of witnesses filed with the court. A.R. was subpoenaed to appear at a preliminary hearing in January 2004; however, he failed to appear. A.R. was not located until he was arrested on December 20, 2005, about two weeks before the start of defendant's trial.

A prosecution investigator interviewed A.R. on December 20 and 21, 2005. Though the prosecutors attended a pretrial motions hearing on December 22, they did not disclose to defendant's counsel that A.R. had been located and interviewed until December 29. The next day they moved either to withhold disclosure of his address from defendant or for a protective order, disclosed the investigator's notes from the recent interviews to defendant's counsel, and made A.R. available for defendant's counsel to interview. In response, on January 3, 2006, two days before trial, defendant moved either to strike A.R. as a witness or to continue the trial.

The district court held a motions hearing on January 3. As relevant here, defendant's counsel asserted that the prosecution's failure to disclose, as soon as practicable, that A.R. had been located and interviewed violated defendant's right to confront and cross-examine a critical prosecution witness. Counsel also claimed that, absent a continuance, they would be unable to fully investigate A.R.'s recent statements, which allegedly were inconsistent with his October 2002 statements and therefore relevant for cross-examination and impeachment purposes. Therefore, they argued, a continuance was necessary to protect defendant's right to effective assistance of counsel. The prosecutor responded that because A.R. had expressed fear for his personal safety, disclosure of his apprehension had been withheld until that fear could be investigated and prosecutors could arrange for his safety.

The district court denied defendant's motion, concluding that the delay was appropriate in light of the legitimate concern for A.R.'s safety and that the delay did not prejudice defendant.

Prosecutors have a duty by rule to disclose the names and addresses of and statements by witnesses who will testify at trial. Crim. P. 16(I)(a)(1)(I), (VII); but see United States v. Ashley, 274 Fed.Appx. 693, 697 (10th Cir.2008) (unpublished decision) (“the Due Process Clause does not require the government to disclose before trial the names of its witnesses, just so the defense can have sufficient time to investigate their backgrounds for impeachment information” (citing Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977))). The crux of defendant's argument is that prosecutors did not comply with the “spirit” of that rule.¹

We review the district court's resolution of discovery issues for an abuse of discretion. See Salazar v. People, 870 P.2d 1215, 1218 (Colo.1994); People in Interest of A.D.T., 232 P.3d 313, 316 (Colo.App.2010); People v. Denton, 91 P.3d 388, 391 (Colo.App.2003). A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or infringes on a defendant's constitutional rights. See People v. Villano, 181 P.3d 1225, 1228 (Colo.App.2008); Denton, 91 P.3d at 391. However, even if the court abuses its discretion, we will disturb its decision only if the defendant establishes that he suffered prejudice. Salazar, 870 P.2d at 1220;People v. Alley, 232 P.3d 272, 274 (Colo.App.2010).

The record shows that the prosecution delayed disclosing that A.R. had been apprehended to investigate his statements that he believed defendant was responsible for a shooting that occurred at his house soon after his initial interview; that he had allowed his house to go into foreclosure rather than live there because he knew defendant had keys to his house and the control for the alarm system; and that he had fled to Mexico out of fear of defendant. On appeal, defendant does not contest the court's finding that the prosecution had a reasonable concern for A.R.'s safety. The delay to allow the prosecutors to investigate the matter and take appropriate precautions to assure A.R.'s safety was not lengthy. Under these circumstances, we conclude that the prosecutors did not violate their discovery obligations (or any conceivable constitutional right of defendant) because, in light of the concern for A.R.'s personal safety, the disclosure was made as soon as practicable. See People v. Dist. Court, 933 P.2d 22, 25–26 (Colo.1997) (recognizing that concern about a witness's safety may justify refusal to provide a witness's address (and certain other information) without violating the right of confrontation).

Further, defendant has failed to show that he was prejudiced by the nine-day disclosure delay. As noted, on December 29, the prosecution disclosed that A.R. had been located and made the interview notes available to the defense on December 30. A.R. did not testify until January 12, meaning defendant's counsel had nearly two weeks to interview A.R. and to conduct any necessary investigation. Defendant fails to explain specifically why this amount of time was inadequate or how the result of the trial would have been different had his counsel learned of A.R.'s availability on December 20 rather than December 29. And we see no indication in the record that defendant's counsel was unprepared at trial or unable to thoroughly and competently cross-examine A.R. See Salazar, 870 P.2d at 1220, 1222–23 (five-day delay in disclosing test results not prejudicial where, among other things, the defendant was able to thoroughly cross-examine the witness about his findings); People v. Scarlett, 985 P.2d 36, 42 (Colo.App.1998) (no abuse of discretion in denying a continuance “even when a criminal defendant asserts a need to prepare to meet unexpected or newly discovered evidence or testimony”); People v. Chambers, 900 P.2d 1249, 1253 (Colo.App.1994) (no abuse of discretion in denying a continuance where, at the time of the late endorsement of a witness, the witness was made available to the defendant, and the defendant was able to competently cross-examine him).

Therefore, we conclude that the district court did not abuse its discretion by denying defe...