People v. Stewart, Court of Appeals No. 15CA0717

• Docket Nº: Court of Appeals No. 15CA0717
• Citation: 417 P.3d 882
• Case Date: July 27, 2017
• Court: Court of Appeals of Colorado

417 P.3d 882

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Coleman Backstrom STEWART, Defendant-Appellant.

Court of Appeals No. 15CA0717

Colorado Court of Appeals, Division IV.

Announced July 27, 2017
Rehearing Denied September 7, 2017

Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Zonies Law LLC, Sean Connelly, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE GRAHAM

¶ 1 Defendant, Coleman Backstrom Stewart, appeals the judgment of conviction entered on jury verdicts finding him guilty of felony menacing and misdemeanor obstructing a peace officer. We conclude that there were a number of errors in the trial proceedings—two of them standing alone might serve as the basis for reversal, but collectively they clearly require that we reverse the conviction and remand for a new trial.

I. Background

¶ 2 When an impetuous youth runs from police, good things rarely result. This case is just such a circumstance.

¶ 3 Inebriated, defendant took a cab from a friend's house and refused to pay his $4.85 cab fare. Rather than deliver defendant to his desired destination, the cab driver, apparently suspecting that defendant would not pay his fare, stopped near a police station. Defendant jumped from the cab and ran, with the cab driver in pursuit. The cab driver alerted a nearby police officer who shouted at defendant and also gave chase. Defendant ran to his apartment and then appeared behind his window blinds with a plastic BB gun. Officers, who had entered defendant's gated patio, opened fire, and defendant suffered two gunshot wounds.

¶ 4 The evidence at trial showed that defendant's apartment was surrounded by a six-foot privacy fence that was locked. The apartment air conditioner was running at a high noise level. The fence enclosed defendant's private patio and was not accessible to other residents of the building. At least one police officer scaled the fence and then opened the gate for remaining officers to enter the patio. It was after the officers breached the fence that they saw defendant with the BB gun and, believing the gun to be real, commenced firing.

¶ 5 Prior to trial, defendant filed a motion to dismiss the charges against him on grounds that "outrageous government conduct" in violation of his Fourth and Fifth Amendment rights barred prosecution. U.S. Const. amend. IV ; U.S. Const. amend. V. The motion also sought to suppress all evidence obtained by the police after their illegal entry onto his property. The trial court denied the motion without holding a hearing or issuing a detailed order.¹

417 P.3d 886

¶ 6 A jury convicted defendant of felony menacing and obstructing a peace officer. The trial court sentenced defendant to probation.

II. Evidentiary Errors

¶ 7 All relevant evidence is admissible unless otherwise prohibited by law. CRE 402. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401.

¶ 8 When a defendant objects to the admission of evidence, we review for harmless error. People v. Garcia , 28 P.3d 340, 344 (Colo. 2001). If the error is not one of constitutional dimension, the defendant bears the burden of showing prejudice from the error. People v. Vigil , 718 P.2d 496, 500 (Colo. 1986) ; People v. Casias , 2012 COA 117, ¶ 60, 312 P.3d 208. We will reverse if the error "substantially influenced the verdict or affected the fairness of the trial proceedings." Tevlin v. People , 715 P.2d 338, 341-42 (Colo. 1986).

A. Refreshing Recollection Evidence

¶ 9 Whether defendant was aware that a police officer was chasing him after he jumped from the cab was hotly disputed. The prosecutor sought to establish that the officer had yelled at defendant and identified himself as a police officer. The prosecution's first witness had seen some of the chase, but she had only a vague recollection of events when she was called to the witness stand for direct examination. Rather than asking an open-ended question, the prosecutor asked: "And if you told the officer at the time that you heard 'stop police' would that be accurate?" Defense counsel objected to the leading question, but the trial court overruled the objection because it was "being used to refresh recollection." Defense counsel sought leave to approach the bench to make further argument, but the trial court denied the request. The witness then responded: "Yes, I think anything I said to him would have been accurate."

¶ 10 The prosecutor's question placed words in the witness's mouth—words that were critical in evaluating the defense that defendant was not aware he was being chased by a police officer. CRE 611(c) prohibits leading questions on direct examination, and CRE 612 permits refreshing recollection only in limited circumstances and following a particular procedure.

¶ 11 The court's ruling was in error not only because the prosecution was leading the witness but also because it violated CRE 612. That rule deals with situations where a witness indicates a lack of recollection and has his or her recollection refreshed with a writing. No writing was introduced in this instance. Nor was this question proper impeachment because no foundation was laid. See CRE 613 (stating that denial or failure to remember the prior statement is a prerequisite for the introduction of extrinsic evidence to prove a prior inconsistent statement); see also § 16-10-201, C.R.S. 2016. Here, the prosecutor did not attempt to call the witness's attention to a prior inconsistent statement. Instead, the prosecutor simply told the witness what the prosecutor wanted to prove.

¶ 12 Under circumstances where defendant's awareness of the presence of police was both disputed and pivotal to his defense, we cannot conclude that this error was without prejudice. The witness's answer could easily give a jury the impression that defendant was aware from the outset that he was being chased by police. Furthermore, although defense counsel was able to elicit from the witness during cross-examination that she did not in fact tell the investigator she had heard the officer yell "stop police," the prosecutor nevertheless referenced this statement as though it was a proven fact multiple times during trial.

¶ 13 And we do not agree that evidence of defendant's menacing was overwhelming. His appearance behind blinds at the window with his BB gun was fleeting, and the jury could have believed that he was not intending to menace the police but instead he was in fear of the cab driver.

¶ 14 But, on balance, although we conclude that this error was prejudicial, we cannot conclude that it, standing alone, "substantially influenced the verdict or affected the fairness of the trial proceedings."

417 P.3d 887

Tevlin , 715 P.2d at 341-42. Thus, it is harmless in the sense that this error, in isolation, does not require reversal, although it substantially contributes to the cumulative error determination discussed in Part V below.

B. CRE 404(b) Evidence

¶ 15 Defendant objected to the introduction of evidence of a 2010 incident in Kansas, where he hid from police under a parked car, as improper character evidence. The trial court initially agreed the evidence should be excluded unless defendant "were to testify that he did not know police were after him or trying to contact him."

¶ 16 Defendant did not testify at trial, but the court ruled that he had opened the door to this evidence by suggesting through argument and examination of witnesses that he did not knowingly menace police because he was unaware that police were on his patio. Thus, the court admitted the evidence for the limited purpose of rebutting "any allegation of accident or mistake" on the part of defendant. In rebuttal, the People introduced the testimony of two police officers from Kansas who found defendant hiding under a parked car after responding to a report of possible car break-ins.

¶ 17 On appeal the People contend this evidence does not implicate CRE 404(b) because it was "admitted to show that [defendant] had previous experience with law enforcement," "not ... to show that, because [defendant] hid from an officer on a previous occasion, he acted in conformity with that character in this case in knowingly resisting arrest." We disagree.

¶ 18 CRE 404(b) addresses evidence of "other crimes, wrongs, or acts." The Kansas incident several years prior to the charges in this case is clearly evidence of other crimes, wrongs, or acts. Indeed, during trial the prosecutor, defense counsel, and the trial court all agreed this evidence implicated CRE 404(b).

¶ 19 Evidence of prior acts is admissible if the acts (1) relate to a material fact; (2) are logically relevant; (3) have a logical relevance "independent of the intermediate inference, prohibited by CRE 404(b), that the defendant has a bad character" and committed the crime charged because he acted in conformity with that bad character; and (4) have a probative value that is not substantially outweighed by the danger of unfair prejudice. People v. Spoto , 795 P.2d 1314, 1318 (Colo. 1990).

¶ 20 We review a trial court's decision...