author: Opinion by JUDGE BERGER JUDGE RICHMAN, concurring in part and dissenting in part.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. April Rose TRAVIS, Defendant-Appellant.
    Court of Appeals No. 13CA1431
    Colorado Court of Appeals, Division VII.
    Announced June 16, 2016
    Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Douglas K. Wilson, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
    Kapelke , J., concurs Richman, J., concurs in part and dissents in part

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2015.

   Opinion by JUDGE BERGER

¶ 1 Defendant, April Rose Travis, beat her housemate with a mop handle and stabbed her over a disagreement about money. A jury convicted Travis of second degree assault causing serious bodily injury, felony menacing, and third degree assault with a deadly weapon. The trial court sentenced Travis to ten years imprisonment and three years of mandatory parole.

¶ 2 Travis claims three errors on appeal. First, she argues that the trial court erred when it denied her motion to suppress statements she made to the police and admitted those statements at trial. Second, she contends that the trial court abused its discretion when it denied her motion to continue the trial so she could hire private counsel. Third, she argues that statements by the prosecution during closing argument constituted prosecutorial misconduct. Travis also asserts that the cumulative effect of these alleged errors requires reversal.

¶ 3 Because we are unable to determine on the record before us whether the court should have continued the trial, we remand for further proceedings. We reject all other claims of error.

I. Relevant Facts and Procedural History

¶ 4 Travis, her husband, and the victim lived together in a three-bedroom trailer. The victim suffered from disabilities and Travis purportedly helped the victim manage her money and medications.

¶ 5 Travis learned that the victim had between six and eight dollars in her purse. Travis told the victim she was not permitted to have any money (the basis for such a directive is unclear), and took away the victim's purse. The victim demanded that Travis return her purse. In response, Travis slapped the victim and punched her in the face several times. The victim fell and knocked over a potted plant, spilling dirt on the floor. Travis ordered the victim to clean up the mess. When the victim did not do so to Travis's satisfaction, Travis hit the victim with a mop handle repeatedly, tore out clumps of her hair, and stabbed her arm with a kitchen knife. The victim called 911.

¶ 6 Several medical personnel and police officers responded to the call. While the victim received medical attention in the living room, one of the officers asked Travis to step into the adjoining kitchen, where he questioned her for about ten minutes. A second officer participated in a portion of that interview.

¶ 7 After Travis told the first officer that she had attacked the victim, the second officer arrested Travis and drove her to the police station, where she was advised of her Miranda rights and further interrogated. Travis again admitted to the attack during this interrogation. Travis was charged with second degree assault causing serious bodily injury, felony menacing, and second degree assault with a deadly weapon.

¶ 8 Travis moved to suppress the statements she made to the police at her home and at the police station. The trial court denied her motion. On the morning of trial, Travis requested a continuance to enable her to dismiss her public defender and hire private counsel. The court denied that motion, the trial commenced, and the jury convicted Travis of the offenses described above.

II. Suppression of Travis's Statements to Police

A. Custody Determination

¶ 9 Travis argues that the trial court erroneously concluded that she was not in custody during the interview with police that occurred at her home and that, because she was not advised of her Miranda rights, the court erred in denying her motion to suppress the statements she made at that time. Like the trial court, we conclude that Travis was not in custody during that interview and thus no Miranda warnings were required.

1. Law

¶ 10 "To protect a [defendant's] Fifth Amendment right against self-incrimination, Miranda prohibits the prosecution from introducing in its case-in-chief any statement ... procured by custodial interrogation, unless the police precede their interrogation with [ Miranda ] warnings." People v. Matheny , 46 P.3d 453, 462 (Colo. 2002) (citing Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). The protections of Miranda apply only if a defendant is subject to both custody and interrogation. Mumford v. People , 2012 CO 2, ¶ 12, 270 P.3d 953.

¶ 11 The People concede that Travis was subjected to interrogation at her home. Thus, to resolve Travis's claim, we must determine whether the trial court correctly ruled that she was not in custody at that time.

¶ 12 Determining whether a person is in custody for Miranda purposes is a mixed question of fact and law. Matheny , 46 P.3d at 462. We defer to the trial court's findings of historical fact if those findings are supported by competent evidence in the record. Id. However, we review de novo the legal question of whether the facts, taken together, establish that a defendant was in custody for Miranda purposes. People v. Elmarr , 181 P.3d 1157, 1161 (Colo. 2008).

¶ 13 "To determine if a particular defendant was in custody, trial courts must decide whether a reasonable person in the defendant's position would consider himself to be deprived of his freedom of action to the degree associated with a formal arrest." People v. Pascual , 111 P.3d 471, 476 (Colo. 2005) (citation omitted). To make this determination, a court must consider the totality of the circumstances under which the interrogation was conducted. People v. Barraza , 2013 CO 20, ¶ 17, 298 P.3d 922. Factors a court should consider include the following:

(1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer's tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer's response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant's verbal or nonverbal response to such directions.

Matheny , 46 P.3d at 465-66. No single factor is determinative. People v. Pleshakov , 2013 CO 18, ¶ 20, 298 P.3d 228.

2. Application

a. Facts

¶ 14 The following undisputed facts inform our analysis of the custody issue:

• At about 1:00 a.m., several officers and medical personnel responded to an emergency call at Travis's home.
• One of the officers approached Travis and asked her to step from the living room into the kitchen, a distance of about fifteen feet, so he could ask her some questions.
• No walls separated the kitchen and the living room.
• The officer questioned Travis about the events of that night for about ten minutes.
• Travis's husband was seated five or six feet away from Travis during the interview and was within her line of sight.
• The officer did not place Travis in handcuffs or touch her during the interview.
• The officer asked open-ended questions and maintained a conversational tone.
• Travis's demeanor was calm and relaxed, she was responsive to questions and gave coherent answers, and she did not ask the officers any questions.
• A second officer joined the interview for three or four minutes and then left before the interview had concluded.
• Though both officers were in uniform and armed, neither made any threats or promises or brandished their weapons.
• Immediately after the interview concluded, the first officer took the second officer aside and told him that Travis had admitted to having committed the assault. The second officer then told Travis, "you are going to be placed under arrest for assault against [the victim]," placed her in handcuffs, and drove her to the police station.

b. Analysis

¶ 15 For five reasons, we conclude that Travis was not in custody for Miranda purposes during the interview at her home.

¶ 16 First, neither of the officers used physical restraint or force on Travis during the interview. See People v. Breidenbach , 875 P.2d 879, 886 (Colo. 1994) ("One well-recognized circumstance tending to show custody is the degree of physical restraint used by police officers to detain a citizen."). To the contrary, the first officer did not demand, but merely requested, that Travis move to the kitchen. See People v. Howard , 92 P.3d 445, 452 (Colo. 2004) (suspect was not in custody where the officer asked, but did not direct, the suspect to step outside of his home).

¶ 17 Second, though Travis was never told that she was "free to leave," she did not appear emotionally distraught, was calm, and never indicated that she wanted the interview to end. See People v. Klinck , 259 P.3d 489, 494 (Colo. 2011).

¶ 18 Third, the interview was brief, lasting no more than ten minutes. See id. This scenario is significantly different from the circumstances in People v. Holt , 233 P.3d 1194, 1195-96 (Colo. 2010), where the supreme court concluded that the defendant was in custody because at least six police officers entered the defendant's apartment with their weapons drawn, the defendant was handcuffed and ordered not to move, the defendant's voice quavered during questioning, and the interview lasted nearly thirty minutes.

¶ 19 Fourth, though several officers were present in and around Travis's home, only two questioned Travis, and one participated in the conversation for only three or four minutes. Moreover, Travis's husband (who was also unrestrained) was nearby, and the officers' tones were conversational. These circumstances are similar to those in Pleshakov , ¶ 30, where the supreme court concluded that the defendant was not in custody when four officers were present during the interrogation with the defendant, but only one officer questioned the suspect while the other officers were engaged in other tasks; the defendant was questioned in close proximity to his two companions, neither of whom was handcuffed; and the tone of the interaction was conversational.

¶ 20 Lastly, although the interview took place late at night during a response to an emergency call, it took place in Travis's kitchen and not in a secluded location. In People v. Cowart , 244 P.3d 1199, 1204 (Colo. 2010), the supreme court addressed the significance of an interview taking place in the suspect's home, which is inherently less coercive than questioning in a "police-dominated setting." Cf. Orozco v. Texas , 394 U.S. 324, 326-27, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (holding that a neutral locus is not determinative because Miranda protections are not limited to police station interrogations). In Cowart , four officers went to the defendant's home at night to question him about an alleged sexual assault. 244 P.3d at 1204. One officer asked the defendant to sit down in the living room and then asked him questions while the other officers stood a few feet away. Id. During the interview, the defendant's wife was seated nearby, and the defendant was never isolated from her by the officers. Id. Taking these circumstances into consideration, the court concluded that "[a] consensual interview that takes place in the defendant's house and in the presence of his wife does not exert the compulsive forces Miranda sought to prevent." Id. at 1205.

¶ 21 Similarly, Travis was interviewed in her kitchen with her husband in view and the officers did not isolate her. This contrasts with People v. Minjarez , 81 P.3d 348, 356-57 (Colo. 2003), where the defendant was determined to be in custody when he was questioned in a conference room at a hospital with the door closed and officers blocking the exit.

¶ 22 All of these circumstances support the trial court's conclusion that Travis was not in custody when she was questioned at her home.

¶ 23 Nevertheless, Travis argues, relying on People v. Polander , 41 P.3d 698 (Colo. 2001), that because it was objectively apparent that police officers had reason to arrest her, she did not feel at liberty to terminate the interrogation and leave, and therefore was in custody.

¶ 24 In Polander , officers witnessed the defendant and two others using drugs in the back of a van parked in a restaurant parking lot. Id. at 701. The officers made an investigatory stop and patted down the occupants of the vehicle for weapons. Id. They found narcotics in the pocket of one of the occupants, handcuffed him, and instructed him to sit on a nearby curb. Id. The defendant was not yet handcuffed but also was ordered to sit on the curb while the officers searched the van. Id. The officers then found more narcotics in the van, and asked the defendant whether they belonged to her. Id. She admitted that they did and the officer arrested her. Id. The supreme court concluded that, under those circumstances, the defendant was subjected to custodial interrogation because, among other reasons, she "had every reason to believe she would not be briefly detained and then released." Id. at 705.

¶ 25 But, eight years later, the supreme court held in People v. Hankins , 201 P.3d 1215, 1219 (Colo. 2009), that a defendant's reasonable belief that she would be arrested is not dispositive to a custody determination; rather, it is just one factor to consider under the totality of the circumstances.

¶ 26 In Hankins , the court concluded that even though the defendant confessed to murdering his wife and brought the police officers to the site where he buried her body, "the surrounding factual circumstances [fell] short of demonstrating restraint equivalent to arrest." Id. at 1219. The court so concluded because, unlike the situation in Polander , the police did not seize Hankins when he gave his initial confession, he invited the officers to his home to talk, he voluntarily led the police to the burial site, and he was not the subject of an investigatory stop or any other kind of detention. Id. at 1220. Accordingly, Hankins's "expectation, apprehension, or knowledge of inevitable arrest" did not compel a custody determination because "[a] consensual interview that takes place at the defendant's request, on his property and at a place where he offered to drive the investigators does not exert the compulsive forces Miranda sought to prevent." Id. at 1219-20.

¶ 27 The facts of this case are closer to those in Hankins than those in Polander . As in Hankins , Travis was never frisked and she voluntarily admitted to attacking the victim. Unlike in Polander , Travis was never ordered to stand or sit in any location while the officers conducted their police work and none of the other occupants in the trailer home was ordered to sit or stand at any particular place. Though the first interviewing officer asked Travis about the assault, he requested an explanation of the events of that night, and did not accuse her of committing a crime. Indeed, no accusation was made until after the interview had concluded, when the second interviewing officer arrested Travis.

¶ 28 Travis may have reasonably expected that she would be arrested because it was apparent that an assault had taken place, but this factor alone does not outweigh the numerous other factors supporting a determination that she was not in custody. Hankins , 201 P.3d at 1219-20.

¶ 29 Under these circumstances, we agree with the trial court that a reasonable person in Travis's position would not have believed that she was deprived of her freedom of action to the degree associated with a formal arrest. Thus, Travis was not in custody when she gave the statements at her home to the police, and the trial court did not err in denying her motion to suppress the statements she made at her home.

B. Voluntariness of Statements

¶ 30 Travis also argues that the trial court erred in concluding that the statements she made to the police during interviews at her home and at the police station on the night of the assault were voluntary. She argues that, regardless of whether there was Miranda compliance, the trial court erred in denying her motion to suppress. We disagree.

1. Law

¶ 31 The state bears the burden of establishing the voluntariness of a defendant's statement by a preponderance of the evidence. Effland v. People , 240 P.3d 868, 878 (Colo. 2010). We uphold a trial court's findings of fact on the voluntariness of a statement if they are "supported by adequate evidence in the record." Id. However, the ultimate determination of whether a statement is voluntary is a legal question that we review de novo. Id.

¶ 32 The Due Process Clauses of the United States and the Colorado Constitutions forbid the use of a defendant's involuntary statement in a criminal prosecution. Jackson v. Denno , 378 U.S. 368, 376, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) ; Effland , 240 P.3d at 877. "A confession or inculpatory statement is involuntary if coercive governmental conduct played a significant role in inducing the statement." Effland , 240 P.3d at 877. Coercive conduct includes not only physical abuse or threats but also subtle forms of psychological coercion. Id.

¶ 33 Conversely, a statement is voluntary if it is "the product of an essentially free and unconstrained choice by its maker." Id. (citation omitted).

¶ 34 Whether a statement is voluntary must be evaluated under the totality of the circumstances. Id. Factors to consider include the following:

Whether the defendant was in custody or was free to leave and was aware of his situation; whether Miranda warnings were given prior to any interrogation and whether the defendant understood and waived his Miranda rights; whether the defendant had the opportunity to confer with counsel or anyone else prior to the interrogation; whether the challenged statement was made during the course of an interrogation or instead was volunteered; whether any overt or implied threat or promise was directed to the defendant; the method and style employed by the interrogator in questioning the defendant and the length and place of the interrogation; and the defendant's mental and physical condition immediately prior to and during the interrogation, as well as his educational background, employment status, and prior experience with law enforcement and the criminal justice system.

Id. at 877-78.

2. Application

a. Interview at Travis's Home

¶ 35 Travis argues that the statements she made to the police at her home were involuntary because (1) she was not given a Miranda warning prior to that interview; (2) she was physically isolated from her husband during the interview; and (3) the behavior of the interviewing officers and the presence of other officers in her home during the interview constituted coercive conduct.

¶ 36 Though Travis was not given a Miranda warning prior to the interview, we have concluded above that none was required. See California v. Beheler , 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (holding that there is no requirement to give a Miranda warning to a person not in custody, even when that person is the subject of interrogation).

¶ 37 The record does not support Travis's claim that she was physically isolated from her husband. As explained in the previous section, Travis's husband was only a few feet away from her, she and her husband could see each other the entire time, and no walls separated Travis from her husband.

¶ 38 Most importantly, there simply is no evidence of any coercive behavior by the police-a condition precedent to a finding of involuntariness. Effland , 240 P.3d at 877. The officers' behavior did not "overbear [Travis's] will to resist and bring about confessions not freely self-determined." Id. Two officers were present for only a portion of what was a brief interview, and the other officers were attending to other tasks. During the interview, the officers maintained a distance of several feet from Travis, who stood at least three feet away from the nearest wall. The interview was conversational at all times; the officers never made specific threats or demands, or promised Travis anything in return for her conversation; the interview took place in Travis's home; Travis never asked to stop the interview or to speak with an attorney; and Travis appeared calm and relaxed.

¶ 39 For these reasons, we reject Travis's argument that the statements she made to the officers at her home were involuntary.

b. Interview at the Police Station

¶ 40 To support her argument that her statements at the police station were involuntary, Travis asserts that she was "stressed." She notes that at one point she started to write her statement, but stopped after a few lines because she did not want to retell her story.

¶ 41 As noted above, "coercive government conduct is a necessary predicate to the finding that a confession is not voluntary." Id. (citation omitted). Even if coercive conduct is found, the conduct must have "played a significant role in inducing the statements." People v. Valdez , 969 P.2d 208, 212 (Colo. 1998).

¶ 42 The record is devoid of any evidence of coercive conduct at the police station, much less coercive conduct that played a significant role in inducing Travis's statements. Therefore, the trial court did not err in denying Travis's motion to suppress her statements made at the police station.

III. Motion to Continue

¶ 43 Travis argues that the trial court abused its discretion when it denied her request for a continuance to seek new counsel. In People v. Brown , 2014 CO 25, 322 P.3d 214, a case decided after Travis's trial, the supreme court held that a trial court must consider at least eleven factors when it decides such a motion for continuance. Although the district court considered some of the Brown factors, it could not have known at that time that the supreme court would later require express consideration and balancing of many other factors to resolve a motion for a trial continuance for the purposes of hiring new counsel. Because there is insufficient information in the record for us to determine whether the trial court abused its discretion in denying the motion to continue, we must remand the case to the trial court for additional findings.

A. Law

¶ 44 A criminal defendant is entitled to representation by counsel of her choice. Id. at ¶ 16 ; see also U.S. Const. amend. VI. This right is not absolute, however. Considerations such as judicial efficiency or the public's interest in the integrity of the judicial process may outweigh the defendant's interest in being represented by a particular attorney. Brown , ¶ 17. The trial court must apply a multi-factor test to balance these interests. Id. at ¶ 24. The Brown factors are:

1. the defendant's actions surrounding the request and apparent motive for making the request;
2. the availability of chosen counsel;
3. the length of continuance necessary to accommodate chosen counsel;
4. the potential prejudice of a delay to the prosecution beyond mere inconvenience;
5. the inconvenience to witnesses;
6. the age of the case, both in the judicial system and from the date of the offense;
7. the number of continuances already granted in the case;
8. the timing of the request to continue;
9. the impact of the continuance on the court's docket;
10. the victim's position, if the victims' rights act applies; and
11. any other case-specific factors necessitating or weighing against further delay.

Id. The trial court must make findings on each of the Brown factors to enable appellate review of the discretionary decision to grant or deny the continuance. Id. at ¶¶ 19, 25 ; Stidham , ¶ 17.

¶ 45 Because the trial court did not have the benefit of Brown when it denied the motion to continue, it apparently did not consider or weigh all of the Brown factors.

¶ 46 The threshold question here is whether Brown always requires an appellate court to remand to the trial court for further proceedings when the trial court did not consider or balance all of the Brown factors.

¶ 47 The supreme court did not expressly address this question in Brown . However, its explanation for why it remanded that case to the trial court for further factual findings is instructive, and leads us to conclude that, at least under some circumstances, an appellate court may affirm the denial of a trial continuance even when the trial court did not expressly consider and balance all eleven Brown factors.

¶ 48 In directing a remand to the trial court, the supreme court in Brown stated:

Although the record contains some of the information for evaluating whether the trial court abused its discretion in denying the continuance, the record lacks information about other factors that the court should have considered when making its decision. Importantly, lacking from the record is any information about how long it would take [the defendant's substitute counsel] to prepare for trial. The trial court did not inquire into how long of a continuance was needed. The record also lacks information about the court's docket and whether the continuance would cause significant inconvenience for the witnesses who had already been subpoenaed several times. The record also does not contain information regarding whether the trial court considered the age of the case when deciding to deny the continuance. Finally, the victim's position regarding a potential continuance is relevant and must be considered. The victim's position regarding this motion to continue is not in the record in this case. Given the lack of information about these other factors, it is necessary for us to remand the matter so that the trial court may make sufficient factual findings.

Brown , ¶¶ 28-29.

¶ 49 We read these passages in Brown to authorize an appellate court to affirm a denial of a trial continuance even when the trial court has not expressly considered and balanced the eleven Brown factors if, but only if , the record contains sufficient information concerning the Brown factors such that an appellate court can meaningfully determine whether the trial court's denial of the continuance was an abuse of discretion.

B. Analysis

¶ 50 On the day that trial was set to begin, Travis made the following request: "My request was that I was going to look for and pay for an attorney. I don't feel this case is fair regarding [the victim]. There's a lot of stuff that needs to come out about her. I don't think it's fair to me."

¶ 51 The court responded that because the case had been pending for a "very long time," Travis had had "plenty of time" to decide if she wanted to hire private counsel. The court described Travis's appointed counsel as experienced, careful, and hard working. It then denied her request for a continuance, and informed Travis that, if she was dissatisfied with her current legal representation, she could proceed pro se. Travis elected to proceed with her appointed counsel.

¶ 52 The dissent construes Travis's statements to the trial court as indicating that she had done nothing to attempt to hire new counsel, but we are not as sure as the dissent. Not infrequently, defendants incarcerated on a pretrial basis have family members or friends who attempt to retain counsel for the defendant. We cannot tell from this record whether any such activities were underway. Thus, on this record, we cannot sufficiently consider "the availability of chosen counsel" or "the length of a continuance necessary to accommodate chosen counsel."

¶ 53 Similarly, there is nothing in this record that addresses the potential prejudice of a delay to the prosecution beyond mere convenience; the inconvenience to witnesses; the impact of the continuance on the court's docket; or the victim's position, if the victims' rights act applies. Because there is insufficient evidence in the record to determine the missing Brown factors, a remand is required.

¶ 54 The dissent accurately distinguishes this case, in which the identity of substitute counsel was not specified by Travis, from Brown , in which the defendant had already retained substitute counsel (and substitute counsel actually argued the request for continuance). However, to the extent that the dissent argues that Brown is inapplicable to this case because of those distinguishing facts, we cannot agree.

¶ 55 We are aware of no authority holding that a defendant's failure to secure substitute counsel at the time of the motion to continue precludes application of a balancing test weighing the public's interest against the defendant's right to choice of counsel. Instead, every case we have reviewed employing such balancing tests treats the defendant's success or failure in retaining acceptable substitute counsel as a nondispositive factor that the trial court can (and, under Brown , must) weigh in deciding the motion. See, e.g. , United States v. Burton , 584 F.2d 485, 491 (D.C. Cir. 1978) (One of the factors a trial court may consider in deciding a continuance motion is "whether the defendant has other competent counsel prepared to try the case."); State v. DeWitt , 153 Idaho 658, 289 P.3d 60, 64 (Idaho Ct. App. 2012) ("[I]f a defendant seeks to obtain new private counsel just before trial, the district court must decide if the reasons for the defendant's request ... justify a continuance."); People v. Curry , 371 Ill.Dec. 891, 990 N.E.2d 1269, 1278 (Ill. App. Ct. 2013) (A court does not abuse its discretion in denying a defendant's motion to continue to accommodate substitute counsel where, after an inquiry, the court determines that counsel is not "ready, willing, and able to make an unconditional entry of appearance."); State v. Kates , 216 N.J. 393, 81 A.3d 662, 664 (2014) (following Burton ); Vargas v. State , 322 P.3d 1282, 1286 (Wyo. 2014) (same).

¶ 56 Even if the defendant's failure to hire or even attempt to hire substitute counsel before requesting a continuance served as a bar to a continuance, based on the record before us, we cannot be sure that Travis or her family had not made a sufficient (or any) effort to identify private counsel so as to overcome that bar because the trial court did not inquire whether she had. All we know is that Travis desired a continuance so that she could "look for and pay for an attorney." While Travis's statements might be read, as the dissent evidently reads them, to mean that she had not yet done anything to find new counsel, we cannot conclude with sufficient confidence that that was surely the case.

¶ 57 The dissent also would affirm on the independent ground that any abuse of discretion in denying the trial continuance constituted constitutionally harmless error. The United States Supreme Court has held that when a request for a continuance for the purpose of obtaining new counsel is improperly denied, the error is structural and is not subject to constitutional harmless error review. United States v. Gonzalez-Lopez , 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006).

¶ 58 The parties have not briefed the question of whether the allegedly improper denial of Travis's request for a continuance in this case requires the application of constitutional harmless error review or automatic reversal under the structural error doctrine. In the absence of such briefing we, like the supreme court in Brown , consider it prudent not to decide the question.

¶ 59 We nevertheless reject the dissent's suggestion that we may affirm because any error in the trial court's denial of the continuance motion was harmless beyond a reasonable doubt. While we do not hold that the Brown error here was structural, the reasons that supported the Supreme Court's determination that structural error applies to at least some improperly denied motions for trial continuances informs our determination that the error here was not harmless beyond a reasonable doubt.

¶ 60 As the Supreme Court has recognized, the strategies and abilities of counsel vary tremendously. Id. Applying the strict definition of constitutional harmless error, we cannot conclude, as does the dissent, that even the existence of a confession makes any error in depriving Travis of her choice of counsel constitutionally harmless. While the confession may have rendered some conviction very likely in this case, regardless of who represented Travis at trial, that conclusion does not exclude the reasonable possibility that a jury would convict on some but not all of the charged offenses or convict on a lesser included offense but acquit of the greater offense. In our view, though we recognize the force of the dissent's argument, we cannot conclude that any error was harmless beyond a reasonable doubt.

¶ 61 Because there is insufficient information in the record to determine if the court acted within its discretion or abused it and violated Travis's Sixth Amendment right to counsel of her choice by denying the continuance, we remand the case for the trial court to make written findings and enter an order either upholding its denial of the continuance, or, if the court determines that Brown required it to grant the motion for continuance, granting a new trial. In doing so, the court may consider additional evidence.

IV. Prosecutorial Misconduct

¶ 62 Travis argues the prosecutor's closing argument was improper because the prosecutor (1) singled out lesser included offense instructions requested by Travis and (2) told the jury that Travis's counsel believed Travis was guilty.

¶ 63 "Whether a prosecutor's statements constitute misconduct is generally a matter left to the trial court's discretion." Domingo-Gomez v. People , 125 P.3d 1043, 1049 (Colo. 2005). Reviewing a claim of prosecutorial misconduct requires a two-step analysis. People v. McMinn , 2013 COA 94, ¶ 59, 412 P.3d 551. First, we must determine whether the prosecutor's challenged conduct was improper based on the totality of the circumstances. Id. Only if we conclude that the conduct was improper do we then consider whether it warrants reversal according to the proper standard of review. Id.

¶ 64 During voir dire, Travis's counsel told the jury panel, "What I've kind of been getting at is that the law recognizes there's lesser offenses. It's pretty rare that you have a defense attorney stand up here and say I'm going to tell you right now that my client is guilty of some things, right?" Travis's counsel went on to ask a potential juror whether she understood that there are varying degrees of assault. Defense counsel also told the jury during its opening statement that Travis was "overcharge[d]."

¶ 65 In addition to instructions for the charged crimes, the jury was instructed on the lesser included offenses of third degree assault-criminal negligence and third degree assault-knowingly or recklessly.

¶ 66 During closing argument, the prosecutor argued, in part:

Defense counsel stood up in their opening and during jury selection and they told you my client is guilty. We just don't think she committed the crime that the prosecution has charged her with committing. That's why you have so many options in this paperwork. You have the crime that we've charged and the crime that the People are attempting to prove. You have the crime that my office has charged and then you have a lesser crime, the crime that is encompassed in the higher charge that my office has filed. I suspect that when defense counsel comes up and when they talk to you during their closing argument, they're going to ask you to come back with not guilty on anything. Knowing and having admitted that their client has committed a crime, they're going to ask you to come back on those lesser offenses, the more minimal charges, charges, they say their client was likely guilty of on that night.

¶ 67 Relying on People v. Coria , 937 P.2d 386 (Colo. 1997), Travis contends that these statements by the prosecutor essentially created two classes of jury instructions-one class from the court and the other from the defendant. From this purported inference, Travis argues that she was deprived of a fair trial.

¶ 68 We first observe that Coria is factually inapposite. There, the county court directed the jurors to mark the instruction containing the defendant's theory of the case with the words "defendant's theory of the case." Id. at 392. On appeal, the district court reversed the conviction on several grounds, concluding, as relevant here, that the court's direction to the jury deprived the defendant of a fair trial. Id.

¶ 69 The supreme court reversed and reinstated the conviction, holding that while the county court should not have spontaneously directed the jurors to mark the instruction, the county court did not comment either on the evidence or on the merits of the case or the instruction and did not deprive the defendant of a fair trial. Id.

¶ 70 Even if Coria were on point, we reject Travis's arguments. We do not read the prosecutor's remarks here as purporting to create two classes of instructions. Instead, the prosecutor responded appropriately to the statements previously made to the jury panel and jury by defense counsel asserting that the prosecutor had "overcharged" Travis. Moreover, it is not misconduct for a prosecutor to tell the jury that a theory of defense instruction is not a statement of law and that the jury need not accept the defendant's theory. McMinn , ¶ 63.

¶ 71 For similar reasons, we reject Travis's argument that the prosecutor denigrated defense counsel by implying that counsel did not have a good faith belief in Travis's innocence. The prosecutor's remarks were a fair comment on the defense's jury argument that while Travis was guilty of a crime, she was not guilty of the principal charges filed against her.

V. Cumulative Error

¶ 72 Finally, Travis asserts that the cumulative effect of the errors she alleges denied her a fair trial. Because we conclude that there were no errors, there could not have been cumulative error. People v. Gordon , 32 P.3d 575, 581 (Colo. App. 2001).

VI. Conclusion

¶ 73 Other than the trial court's ruling on the motion for continuance, we affirm the trial court's rulings challenged by Travis. We remand the case for the trial court to make the written findings and conclusions mandated by Brown and enter an order either upholding its denial of the continuance, or, if the court determines that Brown required it to grant the motion for continuance, granting a new trial. In doing so, the court may consider additional evidence.

¶ 74 After the trial court issues its order on remand, the clerk of the trial court must submit a copy of the order to this court and the appeal will be recertified. If the trial court determines that a continuance was not required, the judgment of conviction will be affirmed, subject to Travis's right to appeal the court's order on remand. If the court determines that a continuance should have been granted, the judgment will be reversed and the case will be remanded for a new trial, subject to the appellate rights of any party regarding the court's order on remand.

JUDGE KAPELKE concurs.

JUDGE RICHMAN concurs in part and dissents in part.

JUDGE RICHMAN, concurring in part and dissenting in part.

¶ 75 I agree with the majority that suppression of the statements made by Travis to the police at her residence and at the police station is not required and that the prosecution did not commit misconduct in the closing argument at trial. I therefore join in those portions of the opinion.

¶ 76 I disagree that a remand to the trial court to make further findings regarding the denial of the motion to continue the trial is necessary on the facts of this case and therefore dissent from that portion of the opinion.

¶ 77 As the majority correctly observes, the denial of the motion to continue the trial occurred prior to the decision in People v. Brown , 2014 CO 25, 322 P.3d 214, and in denying the motion, the court did not make explicit findings on, or conduct an express balancing of, all eleven factors listed in Brown . The majority acknowledges that under some circumstances, an appellate court may affirm the denial of a trial continuance even when the trial court did not expressly consider and balance all eleven Brown factors, but concludes this is not that case. I disagree. In my view, a remand for further findings in this case is not required, even under application of Brown .

¶ 78 First, this case is factually and procedurally distinguishable from Brown , because there the defendant had already retained private counsel and private counsel had entered an appearance by the time defendant sought a continuance. In fact, it was the private counsel who filed the motion requesting the continuance and stated the grounds for the request. In addition, when the motion was considered by the court, the private counsel was present before the court and was available to answer questions, such as how long it would take counsel to prepare for trial, even though the trial court did not ask. See id. at ¶¶ 8-9.

¶ 79 By contrast, in this case, Travis had not hired private counsel; she did not identify, and apparently did not even contemplate, who the private counsel might be. Accordingly, she had not spoken to the private counsel and did not know if counsel would take the case. In fact, all she said was that she was "going to look for and pay for an attorney."

¶ 80 Second, although the trial court did not make findings or a record on each of the eleven factors listed in Brown , it did consider, as the majority acknowledges, some of the Brown factors.

¶ 81 It did consider the age of the case and the timing of the motion to continue. The motion to continue was filed on the morning of the first day of trial. In denying the motion, the court stated that the case "ha[d] been pending for a very long time" and Travis had "had plenty of time to decide if [she wanted] to hire" private counsel.

¶ 82 The court had also considered what can be viewed as "case-specific factors," id. at ¶ 24, in denying a related motion to continue filed just five days earlier. That prior motion sought a continuance to obtain the presence of a witness to testify about the victim. When denying that motion, the trial court noted that securing the presence of the witness had not been accomplished, despite a continuance of several months. The court also expressed doubt regarding the importance of the possible testimony of the witness, noting that she was not an eyewitness. When Travis again moved for a continuance on the morning of trial, she explained that she wanted to hire private counsel because "[t]here's a lot of stuff that needs to come out about [the victim]." Thus, her stated reason for seeking a continuance was related to the prior motion to continue, and the case-specific factors that the court considered in denying that prior motion also applied to its denial of her motion on the morning of trial.

¶ 83 In addition, although the trial court did not make an explicit finding, the prosecution had previously advised the court that the victim was under emotional stress as a result of the pending case, and "expressed great interest" in having the case go forward.

¶ 84 Of course, the trial court did not make findings on the "availability of chosen counsel" or "the length of continuance necessary to accommodate chosen counsel" because no counsel had been chosen. Id. at ¶ 24.

¶ 85 I recognize that the majority in the Brown opinion concluded that "when deciding whether to grant a continuance to allow a defendant to change counsel, the trial court must conduct a multi-factor balancing test and determine whether the public's interest in the efficiency and integrity of the judicial system outweighs the defendant's Sixth Amendment right to counsel of choice." Id. at ¶ 30. But earlier in the opinion, after listing the eleven factors, Brown also states: "no single factor is dispositive and the weight accorded to each factor will vary depending on the specific facts at issue in the case." Id. at ¶ 24.

¶ 86 Taken together, I read these holdings as directing consideration of the applicable and relevant factors. But that does not require a rote recitation by the trial court of all eleven factors, nor does it mandate an automatic remand by an appellate court if some of the factors are not discussed by the trial court. Moreover, some of the factors listed in Brown could not possibly have been weighed by the court because no new counsel had been identified, and it is impractical to make findings on remand as to other factors identified in Brown , as Justice Márquez astutely pointed out in her dissent to Brown . See id. at ¶¶ 48-49 (Márquez, J., dissenting).

¶ 87 On the record before us in this case, I conclude that the trial court denied the continuance because it essentially found that the public's interest in the efficiency and integrity of the system outweighed Travis's indefinite request that she wished "to look for and pay an attorney." That is all Brown requires.

¶ 88 Third, I note that in setting forth the standards to be applied by an appellate court reviewing the denial of a motion to continue, Brown states that "[o]n appeal, we do not disturb a trial court's denial or grant of a motion for a continuance in the absence of an abuse of discretion" and "[w]e ... find error only if the [trial] court's decision was arbitrary or unreasonable and materially prejudiced the defendant." Id. at ¶ 19 (citation omitted). I would conclude in this case that there was no material prejudice to Travis, even if her choice of counsel was not recognized.

¶ 89 As the majority correctly holds, Travis provided two admissible confessions of the assault to the police: one in her home almost immediately after the attack, and a second shortly afterwards at the police station. The statements were frank admissions that Travis committed an assault on the victim. Given the fact that both confessions were admitted at trial, I believe that having her choice of different counsel would have made no difference in the outcome of this case, and thus, any error by the trial court was harmless beyond a reasonable doubt.

¶ 90 I recognize that in United States v. Gonzalez-Lopez , 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), the Supreme Court held that when a defendant's choice of counsel is denied, structural error applies. Gonzalez-Lopez states that "[w]here the right to be assisted by counsel of one's choice is wrongly denied, ... it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation." Id. at 148, 126 S.Ct. 2557. The majority states that it need not address whether the constitutional harmless error test is applicable here. I conclude that it can be applied.

¶ 91 In this case, Travis was not denied the right to a specific counsel of her choice; she never named or said she had a specific counsel as was true in Gonzalez-Lopez . See id. at 142-43, 126 S.Ct. 2557. Accepting that Gonzalez-Lopez establishes a standard of structural error on the facts of that case, those facts are simply not present here. Moreover, our supreme court in Brown was well aware of Gonzalez-Lopez when it stated that a showing of material prejudice to the defendant was required to find an abuse of discretion in denying a motion to continue, for the Gonzalez-Lopez opinion is cited in the next paragraph of Brown . Brown , ¶¶ 19-20. And, Brown states that "[b]ecause we do not decide whether there was an impermissible violation of Brown's Sixth Amendment right to counsel, we do not address whether such a denial constitutes a structural error, thus requiring reversal of the convictions." Id. at ¶ 29 n. 6.

¶ 92 Thus, I conclude that a structural error analysis does not apply to the denial of a continuance in this case, and given the language in Brown regarding a showing of material prejudice, I believe the constitutional harmless error test may be applied here.

      There is no dispute that Travis was in custody at the police station.

      Although People v. Brown , 2014 CO 25, 322 P.3d 214, does not state whether its holding should be applied to continuance motions decided before Brown was announced, based on Brown 's disposition (which remanded for the trial court to make additional findings), we conclude that Brown is applicable at least to cases directly appealed after Brown . Thus, Brown is applicable to this case. See People v. Stidham , 2014 COA 115, ¶ 17, 338 P.3d 504.


source: Caselaw Access Project

author: Opinion by JUDGE BERNARD

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony Wayne HENRY, Defendant-Appellant.
    Court of Appeals No. 16CA0826
    Colorado Court of Appeals, Division VII.
    Announced April 5, 2018 Rehearing Denied May 17, 2018
    Cynthia H. Coffman, Attorney General, Katharine Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Douglas K. Wilson, Colorado State Public Defender, Ashley E. Sullivan, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE BERNARD

¶ 1 After a crime victim compensation board makes a payment to a victim, it might ask a court to order the defendant in the victim's case to pay restitution to the board. One of Colorado's restitution statutes, section 18-1.3-603(10)(a), C.R.S. 2017, guides a trial court's decision when addressing a compensation board's request for restitution. As is pertinent to our analysis, it states that (1) if a board has "provided assistance to or on behalf of a victim" "as a result of the defendant's conduct"; then (2) a trial court must "presume[ ]" that the amount of the assistance that the board paid to the victim was "a direct result of the defendant's criminal conduct," which the court "must ... consider[ ] ... in determining the amount of restitution ordered." Id.

¶ 2 In this case, the trial court, relying on section 18-1.3-603(10)(a) 's presumption, ordered defendant, Anthony Wayne Henry, to pay restitution to a compensation board. He appeals, and he asserts that the evidence was not sufficient to support the compensation board's restitution request. We disagree because we conclude that the trial court properly relied on the statutory presumption and that defendant did not provide any evidence to rebut it. We therefore affirm.

I. Background

¶ 3 A jury convicted defendant of third degree assault. It had heard evidence that he had struck the victim, bruising her face, her chest, and her throat.

¶ 4 At the sentencing hearing, the trial court imposed a two-year jail term. As is pertinent to our analysis, the court also ordered defendant to pay $900 in restitution. Defendant objected to this amount, and he asked for an evidentiary hearing. The court replied that he could contest the restitution order after he had consulted with the prosecution to see if the $900 figure was accurate.

¶ 5 This consultation apparently did not satisfy defendant, because he filed a second objection. The objection asked for additional documentation to support the restitution request and for a hearing. The court granted the request for a hearing. But it denied the request for additional documentation, reasoning that the records that defendant sought were confidential.

¶ 6 At the hearing, defendant objected to the documentation that the prosecution had submitted in support of the restitution request. He asserted, as is relevant to our discussion, that the documents did not explain (1) how the victim had suffered any losses; or (2) how defendant's criminal conduct had caused those losses.

¶ 7 After a recess, the issue came into clearer focus. According to the director of the compensation board, the $900 restitution figure included the board's request for restitution for $230 that it had paid to the victim for lost wages. Defendant refined his position, stating that there was no evidence that the victim had missed enough time from work to support a request for $230 in lost wages. He therefore asked the court to review the relevant records from the compensation board in camera.

¶ 8 The compensation board's director then testified. She said that

• the board generally relies on two sources of information when it decided whether and how much it should pay a victim for lost wages:
• a form filled out by a victim; and
• a form filled out by the victim's employer;
• the board then determines when the victim did not work, when the victim returned to work, and whether those dates were "in conjunction" with a reported crime or a court date;
• after calculating the number of work hours that the victim missed, the board multiplies that number by the victim's hourly wage, and it then subtracts fifteen percent;
• the board could pay a victim up to two weeks of lost wages for any reason and without a doctor's note or other documentation as long as the victim's absence from work was directly related to the crime;
• the director did not know how much work that the victim in this case had missed because she did not have the file in the victim's case with her;
• the file in the victim's case was confidential;
• the director estimated that, based on the board's $230 payment to the victim, the victim had missed three to five working days, assuming an hourly wage of $8 to $10, then minus fifteen percent; and
• as far as the director knew, the board had followed all of its policies and procedures in this case.

¶ 9 After the director finished her testimony, defendant argued that the relationship between defendant's conduct and the victim's lost wages would have been too attenuated if the victim had not gone to work because of emotional distress or embarrassment. (This argument was speculative because the record does not contain any evidence to suggest that the victim missed work for those reasons.)

¶ 10 The trial court again ordered defendant to pay $900 in restitution, including a $230 restitution payment to the compensation board to reimburse it for paying the victim's lost wages. The court found that, (1) absent evidence to the contrary, the restitution statute required the court to presume that defendant's conduct was the direct cause of the victim's lost wages; (2) the compensation board's restitution claim was not only based on information from the victim, it was also based on information from her employer; (3) the board had checked to ensure that the dates that the victim had missed were close to the date when defendant had committed the crime; (4) it would not be appropriate to review the board's records in camera; (5) the director's testimony that she had followed the board's guidelines when processing the victim's claim was credible; and (6) defendant's criminal conduct had proximately caused the victim to miss work.

II. Restitution for Lost Wages

¶ 11 Defendant contends that the record does not contain sufficient evidence to support the trial court's decision to order him to pay $230 in restitution to the compensation board for the victim's lost wages. We disagree.

A. Standard of Review

¶ 12 We review a trial court's restitution order for an abuse of discretion. See People v. Bohn , 2015 COA 178, ¶ 8, 381 P.3d 334. A court abuses its discretion when it misconstrues or misapplies the law, or when its decision is manifestly arbitrary, unreasonable, or unfair. See id. We will affirm the court's selection of a specific restitution amount if the record supports it. See id.

¶ 13 We review the trial court's interpretation of a statute de novo. See id. at ¶ 9.

B. Principles of Statutory Construction

¶ 14 We interpret statutes "in strict accordance with the General Assembly's purpose and intent in enacting them." In re 2000-2001 Dist. Grand Jury , 97 P.3d 921, 924 (Colo. 2004). To determine that intent, we first look to the statute's language, see Martin v. People , 27 P.3d 846, 851 (Colo. 2001), giving "words and phrases their plain and ordinary meaning[,]" People v. Padilla-Lopez , 2012 CO 49, ¶ 7, 279 P.3d 651. "If the statutory language unambiguously sets forth the legislative purpose, we need not apply additional rules of statutory construction to determine the statute's meaning." Martin , 27 P.3d at 851.

C. The Restitution Statute

¶ 15 To be a compensable loss, the restitution statute requires that a victim suffer a pecuniary loss (one either specifically mentioned in the statute or some other loss or injury) that is "proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money." § 18-1.3-602(3)(a), C.R.S. 2017; see also People v. Welliver , 2012 COA 44, ¶ 11, 317 P.3d 1192. "Proximate cause in the context of restitution is defined as a cause which in natural and probable sequence produced the claimed injury and without which the claimed injury would not have been sustained." People v. Rivera , 250 P.3d 1272, 1274 (Colo. App. 2010). The prosecution bears the burden of proving, by a preponderance of the evidence, the amount of restitution owed and, generally, that the defendant's conduct was the proximate cause of the victim's loss. See People v. Martinez , 166 P.3d 223, 224 (Colo. App. 2007).

¶ 16 A crime victim may seek compensation from a compensation board for lost wages. See § 24-4.1-109(1)(b), C.R.S. 2017. If the board pays such a claim, a court may order the defendant to reimburse the board for the amount of assistance that it paid to the victim. See § 18-1.3-602(4)(a)(IV). In this case, that amount (1) was established by "[a] list of the amount of money paid to each provider," § 18-1.3-603(10)(b)(I) ; (2) was "presumed to [have been] a direct result of the defendant's criminal conduct," § 18-1.3-603(10)(a) ; and (3) had to be "considered by the court in determining the amount of restitution ordered," id.

¶ 17 Based on this plain language, we conclude that section 18-1.3-603(10)(a) creates a rebuttable presumption. A rebuttable presumption "shifts the burden of going forward to the party against whom it is raised"-that is, "the burden of going forward with evidence"-and "if that burden is not met, establishes the presumed facts as a matter of law." Krueger v. Ary , 205 P.3d 1150, 1154 (Colo. 2009).

¶ 18 We further conclude that subsection (10) did not create an exception to the rule, expressed in cases such as Martinez , 166 P.3d at 224, that the prosecution must prove that the defendant's conduct was the proximate cause of the victim's loss. Rather, it simply created a rebuttable presumption that the prosecution had satisfied its burden. The rebuttable presumption substituted the compensation board's procedures and its decision to pay the victim for the underlying evidence of causation upon which the board had relied when it decided to pay the victim.

¶ 19 Once a compensation board has established that it paid a victim a set amount, the defendant has the burden of introducing evidence to show that the amount paid was not the direct result of his criminal conduct. Accord People v. Hoskin , 2016 CO 63, ¶ 11, 380 P.3d 130 (concluding that the plain language of the speeding statute created a rebuttable presumption because, once the prosecution proves that the defendant was driving in excess of the posted speed limit, "the statute shifts to the defendant the burden of going forward with evidence to negate an element of the speeding statute").

¶ 20 We acknowledge that, before section 18-1.3-603 was amended in 2015 to add subsection (10), divisions of this court had held that a compensation board's payment did not, by itself, establish its right to restitution. Those cases held that a trial court was still required to determine whether the amount paid was proximately caused by the defendant's criminal conduct. See, e.g. , Bohn , ¶¶ 18-19 ; People in Interest of K.M. , 232 P.3d 310, 312 (Colo. App. 2010). But those cases do not apply to this case because defendant assaulted the victim after the amendment had become effective. See Ch. 60, sec. 6, § 18-1.3-603(10), 2015 Colo. Sess. Laws 147.

D. Application

¶ 21 We conclude, for the following reasons, that the district court did not abuse its discretion when it ordered defendant to pay the compensation board restitution for the victim's lost wages. See Bohn , ¶ 8.

¶ 22 The record shows that the prosecution in this case proved, by a preponderance of the evidence, that the victim had lost $230 in wages and that the compensation board had paid that amount to her. As required by section 18-1.3-603(10)(b)(I), "[t]he amount of assistance provided [was] established by" the "list of the amount of money paid to each provider." And the compensation board director's testimony, which the court found to be credible, showed that, as far as she knew, the board had followed all of its policies and procedures when processing the victim's claim. As a result, relying on section 18-1.3-603(10)(a), the trial court properly presumed that the $230 the compensation board paid the victim for lost wages was "a direct result of the defendant's criminal conduct...."

¶ 23 Although defendant generally agrees that section 18-1.3-603(10)(a) creates a rebuttable presumption, he nonetheless contends that the prosecution did not offer any evidence to tie the $230 dollars in lost wages to his conduct. But his contention misses the point of a rebuttable presumption: the presumption was sufficient to tie the loss and his conduct together, see Hoskin , ¶ 11 ; Krueger , 205 P.3d at 1154, until he presented evidence to the contrary. He did not supply any such evidence, and the record did not contain such evidence from another source, so he did not rebut the presumption. See Hoskin , ¶ 11 ; Krueger , 205 P.3d at 1154.

¶ 24 (We also note that the victim's trial testimony established that she had missed work because defendant had assaulted her. For example, she said that she had not gone to work on the day after the assault because her face was so bruised that "she couldn't ... deal with clients or be in front of everybody." She also wrote in her victim impact statement that, as a result of the crime, she had incurred monetary costs arising out of "days missed at work.")

¶ 25 Defendant asserts that the director of the compensation board testified that, as a general matter, the board would not require a victim's employer to fill out a form about the victim's time away from work if the victim was off of work for less than two weeks. We reject that characterization of her testimony because the statement that she made-that the victim did not have to provide any documentation or explanation-was in response to defendant's question about whether the victim needed to provide a reason for missing work.

¶ 26 When questioned about the board's procedures, the director testified that the board had "a lost wage form that we require the employer to fill out." The director did not testify that the board had not followed this procedure; she instead said that, as far as she knew, the board had followed all of its policies and procedures in this case.

III. In Camera Review of the Compensation Board's Records

¶ 27 Defendant asserts that the trial court should have conducted an in camera review of the compensation board's records. We disagree because we conclude that, under the facts of this case, the trial court did not err when it denied defendant's request for an in camera review.

¶ 28 A compensation board's records "relating to [the] claimed amount of restitution" are confidential. See § 18-1.3-603(10)(c) ; § 24-4.1-107.5(2), C.R.S. 2017. As a result, a defendant generally cannot obtain access to them. § 24-4.1-107.5(2).

¶ 29 But a defendant may ask the court to conduct an in camera review of the records if the request is not speculative, and it "is based on an evidentiary hypothesis that warrants an in camera review to rebut the presumption established in section 18-1.3-603." § 24-4.1-107.5(3). After such a review, the court may release additional information contained in the records only if it finds that the information "[i]s necessary for the defendant to dispute the amount claimed for restitution" and "[w]ill not pose any threat to the safety or welfare of the victim, or any other person whose identity may appear in the board's records, or violate any other privilege or confidentiality right." Id.

¶ 30 Defendant did not satisfy these statutory requirements. He did not offer an evidentiary hypothesis to the trial court that would have shown how the records would have rebutted section 18-1.3-603(10)(a) 's rebuttable presumption. For example, he did not allege how those records would have shown that (1) the victim did not miss enough work to support a $230 payment for lost wages; or (2) her $230 in lost wages were not a direct result of defendant's criminal conduct.

IV. Petition for Rehearing

¶ 31 Defendant filed a petition for rehearing that raised some contentions that he had not included in his opening brief. For example, he raised the "canon of constitutional avoidance in statutory construction" in his petition for rehearing, which he did not mention in his opening brief.

¶ 32 For a second example, his due process contention in the opening brief - "Because the prosecution had not met [its] burden of proof at the restitution hearing for $230 in lost wages, this order was a violation of [defendant's] right to [d]ue [p]rocess ...." - was much different than his due process contention in the petition for rehearing - "The court's failure to conduct the review and disclose the documentation violated ... [defendant's] right to due process."

¶ 33 We will not consider the new contentions because defendant raised them for the first time in his petition for rehearing. See People v. Hassen , 2013 COA 16M, ¶ 17 (citing cases).

¶ 34 The order is affirmed.

Berger and Vogt , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.


text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee,
    IN the INTEREST OF I.B.-R., A.B.-R., M.B.-R., and A.R., children, and Concerning J.S.R., C.M.H. f/k/a C.M.R., and S.B.-R., Respondents-Appellants
    Court of Appeals No. 17CA1534
    Colorado Court of Appeals, Division A.
    Announced May 17, 2018
    Bruce T. Barker, County Attorney, David S. Anderson, Assistant County Attorney, Greeley, Colorado, for Petitioner-Appellee.
    Keren C. Weitzel, Guardian Ad Litem.
    Van Gaasbeek Law, Christine Van Gaasbeek, Fort Collins, Colorado, for Respondent-Appellant J.S.R.
    Henson Law, LLC, Patrick R. Henson, Denver, Colorado, for Respondent-Appellant C.M.H.
    Pamela K. Streng, Georgetown, Colorado, for Respondent-Appellant S.B.-R.
   BY THE COURT: Loeb, C.J., Ashby and Welling, JJ.

ORDER OF LIMITED REMAND

PER CURIAM

¶ 1 In this dependency and neglect proceeding, C.M.H. (mother), formerly known as C.M.R., appeals the trial court's judgment terminating her parent-child relationships with her children, I.B.-R., A.B.-R., M.B.-R., and A.R. J.S.R., who is the father of A.R., appeals the judgment terminating his parent-child relationship with A.R. S.B.-R., who is the father of A.B.-R. and I.B.-R., appeals the judgment terminating his parent-child relationships with A.B.-R. and I.B.-R.

¶ 2 One of J.S.R.'s contentions is that the trial court and the Weld County Department of Human Services (the Department) did not comply with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 - 63 (2012), after he asserted Native American heritage.

¶ 3 We agree that, although the Department notified some tribes and the Bureau of Indian Affairs (BIA), the notice was inadequate. Further, the trial court did not make the required inquiry of the participants as to all of the children after the Department initiated the proceeding to terminate parental rights. Therefore, we remand the case to the trial court for the limited purpose of ensuring compliance with ICWA.

I. ICWA's Inquiry and Notice Provisions

¶ 4 ICWA's provisions are for the protection and preservation of Indian tribes and their resources and to protect Indian children who are members of or are eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3) (2012). ICWA recognizes that Indian tribes have a separate interest in Indian children that is equivalent to, but distinct from, parental interests. B.H. v. People in Interest of X.H. , 138 P.3d 299, 303 (Colo. 2006) ; see also Mississippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 52, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). Accordingly, in a proceeding in which ICWA may apply, tribes must have a meaningful opportunity to participate in determining whether the child is an Indian child and to be heard on the issue of ICWA's applicability. B.H. , 138 P.3d at 303.

¶ 5 To ensure tribes have an opportunity to be heard, Colorado's ICWA-implementing legislation provides that in dependency and neglect proceedings, the petitioning party must make continuing inquiries to determine whether the child is an Indian child. § 19-1-126(1)(a), C.R.S. 2017; see also B.H. , 138 P.3d at 302.

¶ 6 The federal regulations and guidelines implementing ICWA impose a duty of inquiry and notice on trial courts. 25 C.F.R. 23.107(a) (2017); Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96,476 (Dec. 30, 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines); see also Notice of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The trial court must ask each participant on the record at the beginning of every emergency, voluntary, or involuntary child custody proceeding whether the participant knows or has reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a); see also People in Interest of L.L. , 2017 COA 38, ¶ 19, 395 P.3d 1209. A proceeding to terminate parental rights is a separate child custody proceeding under ICWA. See 25 U.S.C. § 1903(1) (2012) ; see also § 19-1-126(1) ; People in Interest of C.A. , 2017 COA 135, ¶ 10, 417 P.3d 909. Accordingly, the court must inquire at the commencement of the termination proceeding, and all responses should be on the record. 25 C.F.R. § 23.107(a).

¶ 7 When there is reason to know or believe that a child involved in a child custody proceeding is an Indian child, the petitioning party must send notice of the proceeding to the potentially concerned tribe or tribes. B.H. , 138 P.3d at 302 ; see also 25 U.S.C. § 1912(a) (2012) ; § 19-1-126(1)(b). The BIA publishes a list of designated tribal agents for service of ICWA notice in the Federal Register each year and makes the list available on its website. 2016 Guidelines, pp. 19-20; see also 82 Fed. Reg. 12,986-13,009 (Mar. 8, 2017). If the identity or location of the tribe cannot be determined, notice must be given to the BIA. B.H. , 138 P.3d at 302 ; see 25 U.S.C. § 1912(a).

¶ 8 The 2016 Guidelines recommend the following steps when the reporting party has not identified a specific tribe:

If only the Tribal ancestral group (e.g., Cherokee) is indicated, then ... State agencies or courts [should] contact each of the Tribes in that ancestral group (see ... the published list of ICWA designated agents) to identify whether the parent or child is a member of any such Tribe. If the State agency or court is unsure that it has contacted all the relevant Tribes, or needs other assistance in identifying the appropriate Tribes, it should contact the BIA Regional Office. Ideally, State agencies or courts should contact the BIA Regional Office for the region in which the Tribe is located, but if the State agency or court is not aware of the appropriate BIA Regional Office, it may contact any BIA Regional Office for direction.

2016 Guidelines, p. 18. Thus, "courts [and state agencies] are not required to become experts in tribal genealogy." In re J.T. , 166 Vt. 173, 693 A.2d 283, 289 (1997) (father's statement that his father was a "full-blooded Mohican" did not require court to resolve whether he might be affiliated with the federally recognized Mohegan tribe or the unrecognized Mahican tribe; court's duty was only to notify the BIA). Instead, the BIA is available to assist in identifying appropriate tribes. 2016 Guidelines, p. 18; accord In re Trever I. , 973 A.2d 752, 758-59 (Me. 2009) (child welfare agency properly investigated father's vague claim of Indian heritage by notifying BIA of supporting information).

II. Procedural History

¶ 9 The Department filed a petition in dependency and neglect in April 2016. That same month, J.S.R. told the Department he had Cherokee heritage on his father's side. A month later, he told the trial court his father's lineage descended from a tribe in Arkansas, but he did not know which tribe. The Department did not notify any tribe or the BIA of the dependency and neglect proceeding.

¶ 10 The Department filed a motion to terminate mother's, J.S.R.'s and S.B.-R.'s parental rights in November 2016. In December 2016, the Department sent notice of the termination proceeding to the three federally recognized Cherokee Tribes. Each of the tribes responded that A.R. was not a member or eligible for membership.

¶ 11 The Department also notified the BIA. The notice stated that J.S.R. had indicated he had Cherokee heritage, but it did not mention his reported affiliation to an unknown tribe in Arkansas. The BIA replied that the notice indicated the child's possible tribal affiliation was Cherokee, the Certificate of Mailing showed the Cherokee Tribes had been notified, and the BIA does not research or determine tribal enrollment for tribes.

¶ 12 The trial court terminated all three parents' parental rights in July 2017. Although the court held eight hearings in the eight months following the initiation of the termination proceeding in November 2016, it made no further inquiry regarding the children's possible Indian status at any time.

III. Analysis

¶ 13 J.S.R. contends that the Department failed to comply with ICWA's notice requirements because it did not send notice to any tribes in Arkansas. We agree in part.

¶ 14 There are no federally recognized tribes with designated tribal agents in Arkansas. See Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs, 82 Fed. Reg. 4915-02 (Jan. 17, 2017). Nevertheless, J.S.R. contends that ICWA required the Department to research whether any federally recognized tribes are located at least partially in that state. In particular, he asserts that an investigation would have revealed that the Osage Nation, a federally recognized tribe with its designated tribal agent in Oklahoma, identifies its territory to include land in the state of Arkansas. See Historic Preservation | Osage Nation (Apr. 9, 2018), https://perma.cc/C7V7-RN2M. (We note that J.R.'s opening brief characterizes Arkansas as included in "Osage lands," while the website describes the area as part of its "ancestral lands.")

¶ 15 ICWA does not, however, require courts or departments of human services to ferret out tribal connections from such vague information as the name of a state with no designated tribal agents. See In re Desiree F. , 83 Cal.App.4th 460, 99 Cal.Rptr.2d 688, 695 (2000). Instead, that burden shifts to the BIA, which presumably has the resources and expertise necessary for the task. See id. ; see also 2016 Guidelines, p. 18.

¶ 16 But the notice in this case did not alert the BIA that J.S.R. had reported a tribal connection to Arkansas. This omission frustrated the BIA's ability to fully discharge its responsibility under ICWA to identify potentially relevant tribes. Therefore, we must remand the case to the trial court to ensure compliance with ICWA.

IV. Remand Instructions

¶ 17 On remand, the trial court shall direct the Department to (1) procure the appearance of all the parents, if possible, so that the court may inquire of each of them on the record and (2) inquire of such persons with whom it has contact who may have knowledge of the children's possible Native American ancestry.

¶ 18 The court shall then hold a hearing and ask the participants to state on the record whether they know or have reason to know or reason to believe that any of the children is an Indian child. 25 C.F.R. § 23.107; see also 2016 Guidelines, p. 11; § 19-1-126(1)(b). At the hearing, the Department shall make a record of its efforts to determine whether the children are Indian children. See § 19-1-126(1)(a). The court shall then issue an order detailing its findings.

¶ 19 If any participant provides reason to know or believe that any of the children may be affiliated with a particular tribe, the trial court should proceed in accordance with the ICWA notice requirements and direct the Department to send notice to the applicable tribe or tribes. Otherwise, based on the information that J.S.R. has already provided regarding A.R., the court shall direct the Department to send notice to the BIA indicating J.S.R.'s reported tribal connection to Arkansas.

¶ 20 The trial court must afford the tribes or the BIA a reasonable amount of time to respond to notices and must proceed in accordance with 25 U.S.C. § 1912(a), which provides that (1) no foster care placement hearing or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the tribe; and (2) a tribe shall be granted twenty additional days to prepare for such proceeding if the tribe so requests.

¶ 21 After the expiration of the timeframe under 25 U.S.C. § 1912(a) or a reasonable additional time deemed appropriate by the trial court, the court shall enter factual findings and legal conclusions regarding the application of ICWA.

¶ 22 If the trial court determines that any of the children is an Indian child, within 7 days of issuance of the trial court's order making such determination, the Department shall file notice with this court along with a copy of the trial court's order. The appeal shall then be recertified to permit a division of this court to issue an opinion vacating the termination judgment as to the Indian child or children and remanding the case to the trial court with directions to proceed in accordance with ICWA as to that child or children. The appeal shall be recertified as to any non-Indian children.

¶ 23 If the trial court determines none of the children is an Indian child, within 7 days of issuance of the trial court's order making such determination, the Department must file notice with this court along with a copy of the trial court's order, and the appeal shall be recertified. A supplemental record consisting of the court record created on remand, including the trial court's order, is due 14 days after recertification. However, within 7 days of the matter being recertified, if any party wishes to supplement the record with transcripts of hearings that occurred on remand, that party must file a supplemental designation of transcripts with the trial court and this court. If supplemental transcripts are designated, the complete supplemental record, including the court record, will be due 21 days after the filing of the supplemental designation of transcripts.

¶ 24 Within 14 days of the filing of the supplemental record, any parent may file a supplemental brief, not to exceed 3500 words, limited to addressing the trial court's ICWA determination. If M.B.-R.'s father, although not currently a party to this appeal, wishes to file a brief addressing the ICWA determination, he may do so, but his brief must be accompanied by a notice of appeal indicating his intent to appeal the ICWA determination. Within 14 days of any supplemental brief by a parent, any other party may file supplemental response brief not to exceed 3500 words.

¶ 25 This court further orders that the Department notify this court in writing of the status of the trial court proceedings in the event that this matter is not concluded within 28 days from the date of this order, and that the Department shall do so every 28 days thereafter until the trial court issues its order on remand.