People v. Smalley, Court of Appeals No. 13CA0478
| Decision Date | 08 October 2015 |
| Docket Number | Court of Appeals No. 13CA0478 |
| Citation | 369 P.3d 737 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Chester Neal SMALLEY, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
Opinion by CHIEF JUDGE LOEB
¶ 1 Defendant, Chester Neal Smalley, appeals the judgment of conviction and sentence entered on a jury verdict finding him guilty of possession of a weapon by a previous offender, a class 6 felony. We affirm the judgment, vacate the sentence, and remand for resentencing and correction of the mittimus.
¶ 2 In October 2011, Smalley was living with a woman named Anaiah Mitten in a house that she owned. Mitten and others who spent time in the house were involved in drug activity. Smalley had two previous felony convictions.
¶ 3 On October 25, 2011, police stopped Smalley and Mitten as they were driving away from the house. Mitten was arrested immediately on charges unrelated to this case. Smalley was arrested later that day after police found drugs in the car. They remained in jail until November 1.
¶ 4 On October 27, police returned to the house and saw that the front door was open and damaged. They obtained Mitten's consent for them to clear the house, and they found drug paraphernalia inside. The police returned with a warrant the following day and thoroughly searched the house. They found a police scanner and .45 caliber ammunition in the living room. In the bedroom closet, next to male clothing, they found a shoulder holster, a gun-cleaning kit, a bulletproof vest, and a "tactical" vest containing ammunition and three knives.
¶ 5 On October 29, Smalley made a phone call from jail to a woman named Jennifer Dressler. The call was recorded. Dressler informed him that his ex-wife and another man had broken into the house "to go get your stuff" before the police searched it. The call continued:
Smalley also referred to the item taken as a "black case," and said it was "a big relief" that his ex-wife had removed it from the house.
¶ 6 Smalley was charged with two counts of felony possession of a weapon by a previous offender—one count for a firearm and one count for a knife. The charged time period for both counts was October 25–28, 2011.
¶ 7 At trial, the prosecution introduced this recorded phone call as evidence that Smalley had a gun in the house when he was arrested on October 25. Other evidence to support the firearm count included:
¶ 8 Smalley argued that any gun he may have possessed was stolen before the charged time period. He raised an affirmative defense only to the knife count, arguing that he possessed the knife to protect himself from two men who had burglarized his home the year before.
¶ 9 The jury acquitted Smalley on the knife count but convicted him on the firearm count. The court entered a judgment of conviction for one count of possession of a weapon by a previous offender, a class 6 felony. The court imposed an aggravated prison sentence of three years in the custody of the Department of Corrections (DOC) and twenty-four months mandatory parole.
On appeal, Smalley contends that his conviction must be reversed because the trial court erred by (1) admitting hearsay statements by Dressler on the recorded phone call; (2) allowing the prosecution to rely on Dressler's statements for an improper hearsay purpose in closing argument; and (3) giving the jury unfettered access to the recorded call during deliberations. He also contends that he is entitled to resentencing because the court did not afford him an opportunity to speak on his own behalf at sentencing. Finally, he requests correction of the mittimus to reflect that he was convicted of a class 6, rather than a class 5, felony, with a mandatory parole period of 12 months instead of 24 months.
¶ 11 For the reasons set forth below, we reject Smalley's contentions of error at trial and, therefore, affirm his conviction. However, we agree that he is entitled to resentencing and correction of the mittimus.
¶ 12 Smalley contends that the trial court erred in admitting the recording of his phone call to Dressler because Dressler's statements were hearsay. He argues that the court's admission of those statements violated both the rules of evidence and his rights under the Confrontation Clause of the Colorado Constitution, article II, section 16. We conclude that the court properly admitted Dressler's statements as nonhearsay.
¶ 13 On the morning of trial, the court heard arguments from both parties about the admissibility of the recorded call between Dressler and Smalley. Defense counsel acknowledged that Smalley's own statements were admissible, but he objected to the admission of Dressler's statements on the basis that they constituted hearsay. He also stated his desire to "confront and cross-examine" Dressler about whether someone broke into Smalley's home and what she meant by the word "piece."
¶ 14 The prosecutor responded that he was not offering Dressler's statements for their truth, but only to "put Mr. Smalley's own statements in context." He argued:
Obviously, we are introducing those statements only for Mr. Smalley's state of mind when Ms. Dressler says someone got in and got your black case. It's not being offered for the truth. We don't care if [Smalley's ex-wife] went in and got the black case. We don't care if it's still there. We don't care what that is. All we want is Mr. Smalley's statement saying, That's cool. I was really worried about it.
¶ 15 The court stated that, before playing the recording, it would instruct the jury that Dressler's statements were offered not for their truth but simply to give context to Smalley's statements.
¶ 16 When the prosecutor moved to admit the Dressler call during a detective's trial testimony, defense counsel renewed his hearsay objection and asked the court to provide a limiting instruction. The court gave the following instruction to the jury:
On the tape, ... you'll hear two voices. One will be the defendant's voice and the other is this woman's voice. Whatever the woman's voice says is not being offered for the truth of the matter asserted. Hearsay is an out-of-court statement made by a person that's not here to testify and be cross-examined. You can use that information to provide context for what Mr. Smalley is saying, but you can't use that information as facts alleged, in other words.
The court then admitted the recorded call in its entirety.
¶ 17 After the recording was played for the jury, the detective testified without objection that the word "piece" was common slang for a gun.
¶ 18 We review a trial court's evidentiary rulings for an abuse of discretion. Davis v. People, 2013 CO 57, ¶ 13, 310 P.3d 58. A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law.
People v. Esparza–Treto, 282 P.3d 471, 480 (Colo.App.2011).
¶ 19 Smalley preserved his objection under the rules of evidence by objecting on the basis of hearsay at trial. Accordingly, we apply the harmless error standard to determine whether any error in admitting Dressler's statements under the rules of evidence warrants reversal. Davis, ¶ 13.
¶ 20 We review de novo whether a trial court violated a defendant's Confrontation Clause rights. People v. Phillips, 2012 COA 176, ¶ 85, 315 P.3d 136.
¶ 21 The parties dispute whether Smalley preserved his objection based on the Colorado Constitution's Confrontation Clause. Smalley contends that he preserved this argument because defense counsel stated his desire to "confront and cross-examine" Dressler when he raised the hearsay objection at trial. Therefore, he urges us to apply the constitutional harmless error standard for reversal. The People contend that Smalley did not preserve this argument because defense counsel did not specifically reference the Colorado Constitution. They argue that we should not address a claim under the Colorado Constitution raised for the first time on appeal.
¶ 22 We will assume that Smalley preserved the Confrontation Clause argument. Nevertheless, as set forth below, we conclude that Smalley's confrontation rights were not implicated because Dressler's statements were nonhearsay.
¶ 23 Hearsay is "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c). Unless an exception applies, hearsay statements are generally inadmissible. CRE...
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