People v. Ujaama

• Decision Date: 15 March 2012
• Docket Number: No. 08CA0128.,08CA0128.
• Citation: 302 P.3d 296
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Mustafa J. UJAAMA, Defendant–Appellant.
• Court: Colorado Court of Appeals

302 P.3d 296

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

v.Mustafa J. UJAAMA, Defendant–Appellant.

No. 08CA0128.

Colorado Court of Appeals,

Div. I.

March 15, 2012.

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge DAILEY.

¶ 1 Defendant, Mustafa J. Ujaama, appeals the judgments of conviction entered on jury verdicts finding him guilty of first degree murder (after deliberation) and aggravated motor vehicle theft. We affirm.

I. Background

¶ 2 While defendant, his wife, S.R., and six-year-old stepdaughter, I.R., lived together in a home in Denver, S.R. began a romantic relationship with the victim, Timothy Kaufman. On June 11, 2006, defendant and S.R. had an argument during which S.R. took defendant's cell phone and defendant took S.R.'s cell phone.

¶ 3 The next morning, defendant drove to Aurora to pick up his children at his ex-wife's home and take them to school. Upon returning home, defendant apologized to S.R. for arguing with her and took her to their bedroom, where they became intimate. As they were becoming intimate, defendant told S.R. that he had a surprise for her. A short time later, S.R. heard a knock at the door, at which point, according to S.R., defendant said, “Your surprise is here,” got out of bed, took a gun from the closet, and walked out into the living room. S.R. then heard several gunshots, after which I.R. ran into the bedroom, saying that defendant had killed Kaufman. S.R. and I.R. fled the home through a bedroom window.

¶ 4 Defendant had shot Kaufman eight or nine times, including in the heart, the groin, and the back (three times). Upon determining that Kaufman was dead, defendant found a key to Kaufman's car, located the car, and drove it to the back of the house. Defendant wrapped Kaufman in “bubble wrap” and a rug, put him in the trunk of the car, and drove to Aurora, where he abandoned the car near his ex-wife's home.

¶ 5 Although defendant, in the company of his lawyer, turned himself in to the police later that day, the car and Kaufman's body were not located until the next day.

¶ 6 At trial, the prosecution asserted that, after taking S.R.'s cell phone, defendant read text messages that revealed her romantic relationship with Kaufman, and, posing as S.R., lured Kaufman to the home to kill him. In support of this theory, the prosecution presented evidence indicating that Kaufman had come to the home prepared to have sex,¹ as well as phone records showing that, earlier that morning, Kaufman had exchanged approximately thirty text messages with whoever had possession of S.R.'s phone.² To corroborate S.R.'s testimony that defendant had her phone, while she had his, the prosecution presented phone records showing that (1) a call—which originated near the ex-wife's house in Aurora—was made from S.R.'s phone to a man whom defendant had previously contacted in Seattle to buy a car; and (2) a call was made from defendant's phone to S.R.'s mother.

¶ 7 I.R. testified via closed-circuit television. She related that, while reading in the living room, she heard a knock and saw Kaufman—whom she knew as one of her mother's coworkers—enter the home through an unlocked door. According to I.R., Kaufman said, “Hi,” to her, and then defendant, without saying anything, “came out with a gun, and ... shot him.”

¶ 8 Defendant asserted that he shot Kaufman in self-defense or in response to Kaufman's intrusion into his home. To that end, he testified that

• he was vigilant about the security of his home and paranoid about his family's safety;

• after his fight with S.R., he put her cell phone on its charger, did not see it again, and did not have it on the day of the shooting;

• the surprise he told S.R. about was a new car;

• when he and S.R. were in the bedroom, she stated that she heard a knock at the door and that someone had entered the house; • as he exited the room with his gun, he saw a shirtless, muscular man moving toward him with one hand raised;

• he shot the intruder several times; and

• fearing that the police might kill him if he called them to the house, he decided to take Kaufman's body to the police station, but, en route, left the car near his ex-wife's home so he could contact a lawyer.

¶ 9 The prosecution argued that the location of Kaufman's wounds was inconsistent with defendant's self-defense theory, and the jury found him guilty of first degree murder (after deliberation) and aggravated motor vehicle theft. Subsequently, the trial court sentenced him to a controlling term on the murder count of life imprisonment without possibility of parole.

II. Closed–Circuit Television Testimony

¶ 10 Defendant contends that the trial court violated his federal confrontation rights by allowing I.R. to testify via closed-circuit television without sufficient grounds to do so.³ We disagree.

¶ 11 Before trial, the prosecution filed a motion, pursuant to section 16–10–402, C.R.S.2011, to present the then eight-year-old I.R.'s, testimony via closed-circuit television. The prosecution based its motion on the following circumstances: defendant was I.R.'s stepfather; she observed him kill a person that she knew; she had not seen him since the shooting; she had been in counseling for several months; and, she “would suffer serious emotional distress if forced to testify in front of [defendant] and ... [would] not be able to communicate ... what she witnessed.”

¶ 12 Defendant responded, in writing, arguing that he had the right to confront I.R. during trial and that she would be able to communicate rationally and articulately in open court.

¶ 13 On the morning of trial, the prosecutor, as an offer of proof, stated:

[I.R.] is eight years old. She has not seen the defendant since she saw him kill [Kaufman]. She was in counseling for a great part of the year. It took a substantial amount of counseling to get her to the point that she is sleeping in her own bed, sleeping through the night, able to even converse about this.

¶ 14 The prosecutor offered to provide testimony on these issues from I.R.'s grandmother. Defendant objected that it was “pure speculation” that I.R. would suffer severe emotional distress or trauma by testifying in the courtroom.

¶ 15 The trial court ruled:

[B]ased on the People's offer of proof[,] I don't think there needs to be direct testimony ... because the way the statute is written, it is left pretty much entirely to my discretion. Based on the fact that since this incident, [I.R.] has been receiving counseling, I think that's enough of a showing to meet the standard that's stated in [section 16–10–402(1)(a)(II), C.R.S.2011].

¶ 16 In light of the trial court's ruling, we will assume, without deciding, that defendant's “pure speculation” objection was sufficient to preserve the present issue for appeal. See People v. Melendez, 102 P.3d 315, 322 (Colo.2004) (“We do not require that parties use ‘talismanic language’ to preserve particular arguments for appeal, but the trial court must be presented with an adequate opportunity to make findings of fact and conclusions of law on any issue before we will review it.”).⁴

¶ 17 A defendant has a federal constitutional right to confront adverse witnesses at trial. See U.S. Const. amend. VI. However, the federal constitution does not require that a defendant be allowed in all instances to confront an adverse witness face-to-face in court. People v. Rodriguez, 209 P.3d 1151, 1156 (Colo.App.2008), aff'd,238 P.3d 1283 (Colo.2010).

¶ 18 In Maryland v. Craig, 497 U.S. 836, 857, 110 S.Ct. 3157, 3170, 111 L.Ed.2d 666 (1990), a closely divided Supreme Court upheld a defendant's sexual assault convictions despite the victims' having testified outside her presence via one-way, closed-circuit television. The Supreme Court reasoned that the “preference” for face-to-face confrontation “must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 848–49, 110 S.Ct. at 3165 (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895)).

¶ 19 In Craig, the Court recognized that a state's interest in protecting the physical and psychological well-being of child abuse victims could, in some cases, be sufficiently important to outweigh a defendant's right to face his or her accusers in court. Id. at 853, 110 S.Ct. at 3167. Such a case is presented when the trial court finds that (1) a special procedure is necessary to protect the welfare of the particular child witness; (2) the particular child witness would be traumatized by the presence of the defendant—not by the proceedings generally; and (3) the child witness will suffer more than de minimis emotional distress if forced to testify in the presence of the defendant. Id. at 855–56, 110 S.Ct. at 3169.

¶ 20 In Colorado, section 16–10–402 represents the General Assembly's judgment as to how best, and under what circumstances, to accommodate the public's interest in protecting testifying child witnesses consistent with a defendant's right to confront adverse witnesses. See Rodriguez, 209 P.3d at 1156–57. Consistent with Craig,section 16–10–402 authorizes the use of closed-circuit television to obtain the live testimony of a child who “at the time of a trial is ... less than twelve years of age” when “[t]he judge determines that testimony by the witness in the courtroom and in the presence of the defendant would result in the witness suffering serious emotional distress or trauma such that the witness would not be able to reasonably communicate.” § 16–10–402(1)(a)(II); see Rodriguez, 209 P.3d at 1157.

¶ 21 On appeal, defendant argues that, under Craig, the trial court could not authorize the use of a closed-circuit television procedure to take I.R.'s testimony on the basis of an offer of proof...