People v. Welsh, No. 02SC340.

• Docket Nº: No. 02SC340.
• Citation: 80 P.3d 296
• Case Date: December 08, 2003
• Court: Supreme Court of Colorado

80 P.3d 296

The PEOPLE of the State of Colorado, Petitioner,
v.
Claire Christine WELSH, Respondent

No. 02SC340.

Supreme Court of Colorado, En Banc.

December 8, 2003.

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Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Paul Koehler, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorney for Petitioner

David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, Attorney for Respondent.

Justice RICE delivered the Opinion of the Court.

The People seek review of the court of appeals' decision in People v. Welsh, 58 P.3d 1065 (Colo.App.2002). A jury convicted the defendant of first degree murder after rejecting her defense of not guilty by reason of insanity. The defendant appealed, arguing that the trial court erred in admitting testimony regarding her pre-arrest silence as substantive evidence of her guilt because such evidence violated her privilege against self-incrimination. The court of appeals agreed, ruling that the Fifth Amendment right to be free from self-incrimination includes the right to pre-arrest silence, and that it was reversible error to allow testimony regarding the defendant's silence several hours after the killing. Welsh, 58 P.3d at 1070-71. The People now appeal that ruling.

We granted certiorari on the issues of whether a defendant's pre-arrest silence is admissible as substantive evidence of guilt or, in the alternative, whether such evidence is admissible to impeach the credibility of a defendant who has pled not guilty by reason of insanity.¹

Applying only evidentiary principles, we hold that the defendant's silence had virtually no probative value as rebuttal testimony, rendering it inadmissible as logically irrelevant under Colorado Rule of Evidence ("CRE") 401. Moreover, even attributing to the evidence whatever minimal probative value one might argue it had, the potential for unfair prejudice that such testimony might cause rendered the evidence inadmissible under CRE 403. Therefore, we do not reach the constitutional issue of whether admission of a defendant's pre-arrest silence as substantive proof of guilt violates the Fifth Amendment privilege against self-incrimination.

We further hold that the defendant's pre-arrest silence was not admitted or used for impeachment purposes, but rather that the defendant's silence was used throughout the trial as substantive evidence of her sanity. Moreover, the defendant's silence was inadmissible for impeachment purposes because it did not sufficiently contradict the defendant's later statements to mental health experts that she did not recall the shooting.

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Thus, we now affirm the court of appeals' reversal of the defendant's conviction, remand to the court of appeals and direct it to remand to the trial court with instructions to exclude all testimony regarding the defendant's pre-arrest silence.²

I. Facts and Procedural Background

A. The Shooting and Its Aftermath

On the morning of January 12, 1997, the defendant shot and killed Jack Mileski, a man who was her boyfriend but had been attempting for several months to break off their relationship. Sometime later that day, the defendant shot herself twice, once grazing the top of her head and once through the left side of her chest. That evening at around 7:00 p.m., the defendant called her cousin and asked her to come over to Mileski's apartment and call 911. The cousin arrived to find the defendant in the fetal position on the floor, naked and covered with blood, and Mileski lying still in the bedroom with a gun resting on his chest.

Although, at trial, the defendant did not deny committing the actual act of killing Mileski, she did raise the defense of not guilty by reason of insanity. In doing so, the defendant put her mental state at the time of the killing in issue. Colorado law defines a legally insane person as follows:

[a] person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act... or ... who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of the crime charged.

§ 16-8-101.5(1), 6 C.R.S. (2003).

Because the defendant pled not guilty by reason of insanity and demonstrated some evidence of insanity, the People were required to prove beyond a reasonable doubt that the defendant was sane at the time she committed the killing. § 16-8-105.5(2), 6 C.R.S. (2003). In an attempt to satisfy that burden, the People introduced the following evidence describing the defendant's behavior in the hours following the shooting.

Edward Winters, an emergency medical technician for the fire department, arrived early at the crime scene, where he treated the defendant's injuries. According to Winters, the defendant was able to provide her first name, but did not reply when he asked her where she was hurt and did not reply to any other questioning in his presence.

Officer Lee Daffin was one of the first police officers dispatched to the scene and rode in the ambulance with the defendant in order to gather further information regarding the shooting. According to Officer Daffin, the defendant was "very clear" when asked about basic biographical information, and was able to give her own name and age as well as the name of Mileski. Yet Officer Daffin further testified:

Whenever I would ask any other questions regarding how did you get injured, how did the other person get injured, trying to get suspect information, she would not answer, she would fade out. She would look at the ceiling.

Despite trying several times to ascertain this information, Officer Daffin testified that the

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defendant would "immediately clam up" at every such question

Nurse Tate Ulrich was on duty in the emergency room that night at around 8:00 p.m. when the defendant was brought in with a gunshot wound to her chest. According to Nurse Ulrich, the defendant was able to provide her name and her understanding that she was in a hospital, but looked away and did not answer when asked by Nurse Ulrich and other hospital personnel about what had happened at the apartment.

Nurse Faith Young was working in the Intensive Care Unit ("ICU") when the defendant was brought up from the emergency room at about 9:00 p.m. that evening. According to Nurse Young, the defendant responded to basic admission questions, inquired about her own vital signs, and discussed her own life throughout the evening. Nevertheless, when Nurse Young discovered the defendant's gunshot wound on her scalp, the defendant did not respond to questions regarding what had happened.

Detective Patrick Crouch arrived at the crime scene at around 9:15 p.m. that night and later went to the hospital to interview the defendant. According to Detective Crouch, the defendant did not acknowledge his presence when he entered her room in the ICU. The defendant also did not respond to a series of questions regarding what had happened at the apartment, including whether someone had entered the apartment or whether she had shot herself. Eventually, Detective Crouch asked the defendant if she understood the questions she was being asked, "and she responded to that question by saying she didn't want to make a statement at this time because she might say something wrong."

Finally, Elinor McGarry, a crime scene analyst, was sent to the hospital in order to process the defendant at approximately 10:00 p.m. According to McGarry, the defendant was able to answer basic questions including whether she was right or left handed, and was able to have a conversation regarding her occupation as a physical therapist and her hobbies of rock and ice climbing. McGarry also testified that when asked what had happened, the defendant simply did not respond.

Thus, the prosecution presented testimony from six witnesses regarding the defendant's overall ability to answer biographical questions and engage in some level of conversation, as well as her non-responsiveness to questions regarding what took place at the apartment.

B. Pre-Trial Motions Hearings

There were two pre-trial motions hearings concerning the admissibility of this evidence. At the hearings, both the defense and prosecution made arguments concerning the relevance, under CRE 401, and the danger of unfair prejudicial impact, under CRE 403, of testimony regarding the defendant's uncommunicativeness. Defense counsel contended not only that testimony regarding the defendant's non-responsive behavior was not relevant under CRE 401, but also that its admission "would create a 403 problem, clearly prejudicial to this case and may cause the jury to speculate to the reasons why she didn't respond."

The prosecution countered that the defendant's non-responsiveness tended to prove that, because the defendant chose not to answer certain questions, she therefore was legally sane at the time of the shootings. The prosecution argued:

It was only when the question was asked, what happened, who shot you, things like that she remained silent. And the probative value of that is we have to prove she knew right from wrong at the time this crime was committed. That is very good evidence she knew right from wrong, she chose not to answer those particular questions. And if the Court would admit it for those limited purposes, we think we need [a] limiting instruction [as to] why that evidence is coming in.

The trial court found that the defendant's non-responsiveness to police questioning would be admissible only "on rebuttal if somebody gets up and says something about ability to observe and respond, at that point in time [the defendant's non-responsiveness]

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would be admissible."³ (emphasis added). The trial court also ruled that the defendant's statement...