author: Opinion by JUDGE TAUBMAN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Joseph ALDRIDGE, Defendant-Appellant.
    Court of Appeals No. 15CA0210
    Colorado Court of Appeals, Division I.
    Announced September 20, 2018
    Cynthia H. Coffman, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE TAUBMAN

¶ 1 This case presents the issue of the intersection of two constitutional rights-a defendant's right to confront the witnesses against him or her and the defendant's right to be present at all critical stages of a trial. With adequate findings, the former right may yield in a sexual assault case to allow child witnesses to testify in a different room from the defendant, while the latter requires that the defendant and the jury be located in the same room. Here, the trial court implemented the exception to the right to confrontation of defendant, Robert Joseph Aldridge, by separating him from the alleged child victims. However, we hold that it did so at the expense of Aldridge's right to be present during their testimony, by requiring that Aldridge be excluded from the courtroom and requiring him to watch the children's testimony from the judge's chambers, along with the judge, outside the presence of the jury. Accordingly, we reverse Aldridge's judgment of conviction and sentence, and remand for a new trial.

I. Background

¶ 2 C.O. and L.A. spent about three weeks camping alone with Aldridge, their maternal grandfather, during the summer of 2013. At the time, C.O. was four years old and L.A. was nine years old.

¶ 3 A few days after she was picked up from Aldridge's campsite, C.O. told her aunt that she had seen and touched Aldridge's "pecker." The aunt later questioned L.A., who eventually confirmed C.O.'s allegations. During separate forensic interviews, C.O. did not report any sexual contact with her grandfather, but L.A. stated that both girls had touched Aldridge's penis during the camping trip and that it got stiff. As a result of the allegations, the People charged Aldridge with two counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse, two counts of sexual assault on a child as part of a pattern of abuse, four counts of sexual assault on a child by one in a position of trust-victim under fifteen, four counts of sexual assault on a child, and two counts of aggravated incest.

¶ 4 At trial, the defense argued that Aldridge was physically incapable of obtaining an erection because he had undergone a prostatectomy as part of his cancer treatment and that strained family dynamics resulted in the alleged victims' false accusations. A jury found Aldridge guilty as charged. The trial court sentenced him to 116 years to life in the custody of the Department of Corrections.

¶ 5 On appeal, Aldridge contends that the trial court erred by (1) excluding him from the courtroom while C.O. and L.A. testified; (2) permitting witnesses and the prosecutor to improperly bolster the alleged victims' credibility; (3) allowing a detective to give expert testimony that children's clothing found in Aldridge's motor home may have been an "erotic trigger"; and (4) imposing ten consecutive sentences for four acts. We agree with his first contention and reverse on that basis.

II. Exclusion From Courtroom

¶ 6 Aldridge contends that the trial court violated his right to be present by excluding him from the courtroom when the alleged victims testified, and that the error requires reversal. We agree.

A. Additional Facts

¶ 7 Before trial, the People moved for C.O. and L.A. to testify by closed-circuit television (CCTV) under section 16-10-402, C.R.S. 2017. Specifically, the People asked that the children be permitted "to testify outside the presence of the defendant, in a separate courtroom." The People further represented that CCTV capability existed between the two courtrooms in the county courthouse.

¶ 8 In a written objection, Aldridge argued that allowing the children to testify outside of his presence violated his "due process right to [be] present during critical stages of the proceedings." He argued that "[t]he right to be present isn't satisfied by watching your own trial on TV, even if you are watching it in the company of the judge."

¶ 9 During a motions hearing, the defense primarily argued that the People had not proved that requiring the children to testify in Aldridge's presence would cause them serious emotional distress. The defense also reiterated that it had constitutional concerns that had been addressed in its objection. The trial court granted the People's motion. Neither the trial court nor the parties indicated at the hearing that Aldridge, rather than the children, would be removed from the courtroom.

¶ 10 At the close of the first day of trial and outside the presence of the jury, the trial court explained that the judge, Aldridge, and an investigator from the public defender's office would watch the children's testimony from the judge's chambers while the children testified in the courtroom. The trial court instructed that, if Aldridge needed to communicate with defense counsel during the children's testimony, the investigator would relay his comments via an instant messaging system.

¶ 11 The following morning, the People requested that the children's mother be permitted to stay in the courtroom during their testimony under section 16-10-402(2)(a)(V). Instead, the trial court allowed the children's aunt to stay. When asked for its position on permitting the aunt to remain in the courtroom, the defense stated that it was "objecting to the whole procedure."

¶ 12 Before the children testified, the trial court and Aldridge tested the CCTV setup outside the jury's presence. Aldridge confirmed that he was "seeing the picture," but stated that it was "not like looking at a person. It [was] bouncy or.... It[ was] like something[ was] lagging." After a break off the record, the court clerk reported, "All of our testing is normal." However, Aldridge then said that he had had some trouble hearing his counsel and the prosecutor.

¶ 13 When the jury re-entered the courtroom, Aldridge was in the judge's chambers. The jury could not see or hear him. Before the trial court judge left the courtroom, he explained:

The Court-the way the next two witnesses, who are going to be the children, are going to testify is under the Provisions of the Statute. There is separation-it calls for separation between the child and the Defendant.
In order to do that, the child-or children, are going to testify from the witness stand here. Mr. Aldridge and I will be in my chambers. And we are going to be on a computer video system.
There's a camera in this, this computer. And so, it's, it's one-way. It will show into chambers, the witness, and we will be able to hear.
The witness will be able to hear. Everyone in the courtroom, of course, and we will be able to hear everyone in the courtroom.
The witness won't be able to see us in chambers. We're hoping this works as well as it can. There may be some interruptions.
Our IT people from the [State Court] Administrator's Office and a private vendor, we've worked on this for days. I think we've got it pretty well.

The judge also explained that he would be able to communicate into the courtroom over a microphone.

¶ 14 C.O. testified first. In response to the prosecutor's questions, she initially testified that she did not know anyone named "Grandpa Joe" or "Grandpoo"-her nicknames for Aldridge-and that her mother's dad was dead. The trial court called for a brief recess and, once the jury had left, told defense counsel and the prosecutor that Aldridge was "having an emotional meltdown" based on C.O.'s testimony.

¶ 15 After a break, the trial court resumed C.O.'s testimony, during which Aldridge and the judge remained in the judge's chambers. C.O. testified that she had touched Aldridge's "pecker" and that it was hard, but that L.A. had not touched Aldridge's penis. L.A. testified that Aldridge had made her sister "play with his private spot," but that L.A. had not touched his penis. At various points during L.A.'s testimony, the trial court said that it was having difficulty hearing her.

B. Preservation and Standard of Review

¶ 16 "Whether a trial court violated a defendant's right to be present is a constitutional question that is reviewed de novo." People v. Wingfield , 2014 COA 173, ¶ 13, 411 P.3d 869, 872.

¶ 17 The People urge us to consider the error unpreserved, and therefore to review for plain error, because in their view (1) Aldridge's written objection contained only a "cursory" reference to his right to be present and (2) the defense stood on its prior objection when it became clear the trial court was envisioning having the children testify in the courtroom while Aldridge observed from chambers. We disagree on both counts.

¶ 18 First, we consider Aldridge's argument based on his right to be present in his objection sufficient to "put the trial court on notice of his position" and give it an opportunity to avoid the error. People v. Pahl , 169 P.3d 169, 183 (Colo. App. 2006). Moreover, Aldridge continued to object to the trial court's proposed procedure on various grounds, and reiterated that he stood on his original objection. We consider these actions sufficient to preserve this contention. See People v. Pratt , 759 P.2d 676, 685 n.5 (Colo. 1988) ; see also Uptain v. Huntington Lab, Inc. , 723 P.2d 1322, 1330-31 (Colo. 1986) (objections made in motion in limine constituted a timely objection).

¶ 19 We review preserved constitutional errors for constitutional harmless error, reversing if "there is a reasonable possibility that the [error] might have contributed to the conviction." Hagos v. People , 2012 CO 63, ¶ 11, 288 P.3d 116, 119 (quoting Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ). The People bear the burden of proving that the error was harmless beyond a reasonable doubt. Id. ; see also Luu v. People , 841 P.2d 271, 274-75 (Colo. 1992) (characterizing deprivation of the right to be present as a trial error).

C. Applicable Law

1. Right to Be Present

¶ 20 A defendant has a constitutional right to be present at his or her criminal trial. U.S. Const. amends. VI, XIV ; Colo. Const. art. II, § 16 ; Luu , 841 P.2d at 275 ; People v. Ragusa , 220 P.3d 1002, 1009 (Colo. App. 2009) ; see also Crim. P. 43(a) (stating that a defendant has the right, subject to limited exceptions, to be present "at every stage of the trial").

¶ 21 The right to be present is rooted in part in the Confrontation Clauses of the United States and Colorado Constitutions. U.S. Const. amend. VI ; Colo. Const. art. II, § 16 ("In criminal prosecutions the accused shall have the right to ... meet the witnesses against him face to face...."); see United States v. Gagnon , 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). These clauses protect the defendant's "right to be present at trial to secure the opportunity for full and effective cross-examination of witnesses." Luu , 841 P.2d at 275.

¶ 22 The Due Process Clause, however, affords defendants the right to be present in situations where the Confrontation Clause is not implicated. See Gagnon , 470 U.S. at 526, 105 S.Ct. 1482 (stating that the right to be present is rooted in due process principles "in some situations where the defendant is not actually confronting witnesses or evidence against him"). "[D]ue process clearly requires that a defendant be allowed to be present 'to the extent that a fair and just hearing would be thwarted by his absence.' " Kentucky v. Stincer , 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (quoting Snyder v. Massachusetts , 291 U.S. 97, 108, 54 S.Ct. 330, 78 L.Ed. 674 (1934) ). Thus, the Due Process Clause protects a defendant's right to be present at all "critical" stages of his or her trial. Id. "A critical stage of criminal proceedings is one where there exists more than a minimal risk that the absence of the defendant might impair his or her right to a fair trial." People v. Cardenas , 2015 COA 94M, ¶ 22, 411 P.3d 956, 963.

2. Section 16-10-402 and the Confrontation Clause

¶ 23 A Colorado statute provides a mechanism by which witnesses under the age of twelve can testify "in a room other than the courtroom and be televised by closed-circuit television [CCTV] in the courtroom." § 16-10-402(1)(a). Several conditions must be met before a child witness can testify by CCTV under this statute, including a determination by the trial court "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).

¶ 24 Under section 16-10-402(2)(a), only specified people may be in the room with the child witness when he or she testifies by CCTV-the prosecutor, defense counsel, the child's guardian ad litem, operators of the CCTV equipment, "[a] person whose presence, in the opinion of the court, contributes to the welfare and well-being of the witness," and the jury. § 16-10-402(2)(a)(I)-(VI). "During the witness's testimony by closed-circuit television, the judge and the defendant, if present, shall remain in the courtroom." § 16-10-402(2)(b) ; see also § 16-10-402(2)(c) ("The judge and the defendant shall be allowed to communicate with the persons in the room where the witness is testifying by an appropriate electronic method."). However, the statute does not "preclude the removal of the defendant, rather than the witness, from the courtroom upon the stipulation of both parties and the approval of the court. " § 16-10-402(5) (emphasis added).

¶ 25 This provision provides a narrow statutory exception to the requirements of the Confrontation Clauses. U.S. Const. amend. VI ; Colo. Const. art. II, § 16. In Maryland v. Craig , the Supreme Court upheld a similar law, concluding,

where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence.

497 U.S. 836, 857, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Thus, the Court in Craig held that the Confrontation Clause does not "categorically prohibit[ ] a child witness ... from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television." Id. at 840, 110 S.Ct. 3157 ; see also People v. Phillips , 2012 COA 176, ¶¶ 51, 59, 315 P.3d 136, 150, 153 (concluding that there was no violation of defendant's federal or state confrontation rights when child testified by CCTV from another room under section 16-10-402 ). However, in Craig , the Maryland statute at issue provided for "the child witness, prosecutor, and defense counsel [to] withdraw to a separate room; the judge, jury, and defendant remain in the courtroom." Craig , 497 U.S. at 841, 110 S.Ct. 3157. Because the defendant along with the judge and jury, remained in the courtroom in Craig , the Court had no need to consider whether the procedure violated the defendant's right to be present. See id. at 842, 110 S.Ct. 3157 ("Craig objected to the use of the procedure on Confrontation Clause grounds....").

D. Analysis

¶ 26 Aldridge contends that the trial court erred in excluding him from the courtroom during the alleged victims' testimony. We agree.

¶ 27 At the outset, the People concede that the trial court "did not strictly comply" with the procedure set forth in section 16-10-402. Although the statute does not preclude the removal of the defendant from the courtroom upon the stipulation of both parties and the approval of the court, it is undisputed that Aldridge did not stipulate to his removal in this case. Because the People initially moved for the witnesses to testify from another courtroom by CCTV, it is not clear whether the People stipulated to the procedure used. Indeed, the record does not indicate when the trial court announced the procedure it adopted, or the People's response, especially given their request to have the children testify in another courtroom, with Aldridge remaining in the courtroom. Thus, we conclude that the trial court's decision to remove Aldridge from the courtroom rather than permit the witnesses to testify by CCTV from another room ran afoul of the statutory provision.

¶ 28 Our determination is in accord with the division's analysis in People v. Rodriguez , 209 P.3d 1151 (Colo. App. 2008), aff'd by an equally divided court , 238 P.3d 1283 (Colo. 2010). There, the division concluded that the trial court erred by removing the defendant during a child's testimony without adhering to the procedure set forth in section 16-10-402, though the division also concluded that the error was harmless. Id. at 1158. In Rodriguez , like here, "the parties did not stipulate to defendant's, instead of [the witness's], removal from the courtroom." Id. at 1157 ; see also id. (concluding that the trial court also erred by "not providing an electronic method of communication between defendant and her counsel").

¶ 29 We further conclude that the procedure here violated Aldridge's constitutional right to be present under the Due Process Clause. In other contexts, divisions of this court have concluded that a defendant's removal or absence from the courtroom during a trial court's communications with the jury violated the defendant's due process right to be present during a critical stage of trial. See, e.g. , People v. Payne , 2014 COA 81, ¶ 20, 361 P.3d 1040, 1044 (defendant's absence when trial court read modified Allen jury instruction violated right to be present). These cases have acknowledged that the defendant's in-court presence "can have a psychological impact on the jury that may benefit the defendant." Id. at ¶ 12, 361 P.3d at 1043 ; see also Larson v. Tansy , 911 F.2d 392, 395-96 (10th Cir. 1990) ("[O]n the issue of defendant's absence from jury instructions, closing arguments, and the rendition of the verdict, we hold that defendant was deprived of his due process right to exert a psychological influence upon the jury...."). Thus, implicit in the defendant's due process right to be present is the defendant's right to be present in the same room as the jury. Cf. People v. Lujan , 2018 COA 95, ¶ 11, --- P.3d ----, ---- (concluding that the defendant's right to a public trial was violated when the trial court answered the jury's questions during deliberation in the absence of the parties, contrary to "proper court practices that place the jury and parties together").

¶ 30 Here, Aldridge was removed from the courtroom during a particularly critical phase of the trial-namely, the alleged victims' testimony. The jury could not see Aldridge when that testimony was taken. Thus, the procedure violated not only the statutory provision, but also Aldridge's due process right to be present at his own trial because he was denied any opportunity to exert psychological influence on the jury.

¶ 31 Nevertheless, the People maintain that the procedure used here did not violate Aldridge's constitutional rights because the evidence was sufficiently reliable under Craig , 497 U.S. at 857, 110 S.Ct. 3157. We are not persuaded. In Craig , the Supreme Court addressed whether allowing a child witness to testify by CCTV from outside the courtroom violated a defendant's right to confront the witness. See generally id. at 856-58, 110 S.Ct. 3157. Thus, Craig is distinguishable because here, the defendant was removed from the courtroom and alleges that the procedure offended his right to be present (not just his right to confront the witnesses).

¶ 32 As Aldridge asserts, multiple courts have held that the removal of the defendant from the courtroom during a child witness's testimony constitutes error. See, e.g. , Price v. Commonwealth , 31 S.W.3d 885, 894 (Ky. 2000) (holding that defendant's removal from the courtroom to watch witness's testimony over CCTV, without means of continuous audio contact with defense counsel, violated not only statute, but also defendant's right to be present); People v. Krueger , 466 Mich. 50, 643 N.W.2d 223, 225-26 (2002) (concluding defendant's removal violated state statute). We join that authority.

¶ 33 In sum, Aldridge's exclusion from the courtroom during the children's testimony, in the absence of a stipulation, violated section 16-10-402 and his due process right to be present.

E. Constitutional Harmless Error

¶ 34 We review for constitutional harmless error. Under that standard, we conclude the error requires reversal because the People have not demonstrated that it was harmless beyond a reasonable doubt.

¶ 35 As noted, in Rodriguez , the division concluded that defendant's erroneous removal from the courtroom did not require reversal. 209 P.3d at 1155. There, defense counsel generally "expressed concern" about separating the defendant and the witness during testimony, but "was noncommittal about whether, if a closed-circuit television procedure were utilized, the witness or defendant should remain in the courtroom." Id. Thus, the division considered it "not altogether evident" that the defendant had preserved any objection to her removal. Id. at 1156.

¶ 36 In any event, the Rodriguez division concluded that the error there was harmless beyond a reasonable doubt for two reasons. Id. at 1158. First, the child witness's testimony in Rodriguez was consistent with the defendant's theory of the case-the defendant did not contest her role in inflicting abuse on the child, but rather argued that she acted under duress. Id. at 1159. Second, the defendant did not demonstrate that the lack of ability to communicate with her counsel impaired her defense. Id. at 1158-59 ; see also id. at 1159 (noting that trial counsel "made no record below regarding what additional facts he could have inquired about if he had been permitted constant electronic contact with his client").

¶ 37 Here, the People do not contend that any error is rendered less significant by virtue of Aldridge's ability to communicate electronically with his counsel during the children's testimony.

¶ 38 More significantly, unlike in Rodriguez , the children's testimony here was crucial evidence against Aldridge and ran directly contrary to his theory of the case. Especially because the alleged victims offered shifting accounts of the assaults and there was no physical evidence, there is at least a reasonable possibility that the error here contributed to Aldridge's convictions. Accord People v. Relaford , 2016 COA 99, ¶ 44, 409 P.3d 490, 498 (noting that evidentiary errors have been considered reversible in cases where there was no physical evidence of, or third-party eyewitness testimony to, alleged sexual assaults).

¶ 39 We also disagree with the People's contention that there is no authority that gives a criminal defendant the right to have the jury observe his or her reaction to witnesses' testimony. As discussed, the division in Payne concluded that a defendant has a due process right to be present in part "because of the psychological influence his absence or presence may have on the jury." ¶ 18, 361 P.3d at 1044. Here in particular, Aldridge's absence during the children's testimony may well have been prejudicial because the jury was prevented from observing the extent of his "emotional meltdown" in reaction to C.O.'s testimony. Because the jury could not see Aldridge, he was unable to "exert[ ] any psychological influence" on it. Larson , 911 F.2d at 396.

¶ 40 Accordingly, we conclude that the judgment of conviction must be reversed because Aldridge's erroneous exclusion from the courtroom during the children's testimony was not harmless beyond a reasonable doubt.

III. Other Contentions

¶ 41 We briefly address Aldridge's remaining contentions to provide guidance on remand.

A. Credibility Bolstering

¶ 42 Aldridge contends that the trial court erred in permitting testimony and argument bolstering the alleged victims' credibility.

¶ 43 Because the precise testimony and argument are unlikely to arise in the same context on remand, we do not address each alleged instance of improper bolstering. However, we note two general principles relevant to Aldridge's contention: (1) neither lay nor expert witnesses may give opinion testimony that another witness was telling the truth on a specific occasion; and (2) it is impermissible for the prosecutor to express a personal opinion about the veracity of a witness. See Liggett v. People , 135 P.3d 725, 732 (Colo. 2006) ("[A]sking a witness to opine on the veracity of another witness is prejudicial, argumentative, and ultimately invades the province of the fact-finder."); Domingo-Gomez v. People , 125 P.3d 1043, 1050 (Colo. 2005) ("[P]rosecutorial remarks that evidence personal opinion, personal knowledge, or inflame the passions of the jury are improper."). See generally People v. Wittrein , 221 P.3d 1076, 1081 (Colo. 2009) (discussing case law on testimony regarding child victim's believability and credibility).

B. Detective's Testimony

¶ 44 Aldridge contends that the trial court erred in allowing a detective to offer expert testimony that girls' underwear found in Aldridge's motor home could have been an "erotic trigger." He argues that the testimony had little or no probative value and was highly prejudicial, and that he was deprived of an opportunity to effectively cross-examine the detective because the People had not disclosed the detective as an expert witness before trial. For their part, the People contend that Aldridge opened the door to the challenged testimony by asking the detective whether he had found any pornography or "Viagra or anything like that" in the motor home.

¶ 45 Because this precise issue is unlikely to arise in this context on remand, we decline to address it. See People v. Weinreich , 98 P.3d 920, 924 (Colo. App. 2004) (declining to address evidentiary issue unlikely to arise "in the same context" on retrial), aff'd , 119 P.3d 1073 (Colo. 2005).

C. Consecutive Sentences

¶ 46 Aldridge contends, the People concede, and we agree that the trial court erred by imposing consecutive sentences for ten of the convictions.

¶ 47 Generally, a trial court "has the discretion to impose either concurrent or consecutive sentences." Juhl v. People , 172 P.3d 896, 899 (Colo. 2007). However, under section 18-1-408(3), C.R.S. 2017, "when the district attorney prosecutes two or more offenses based on the same act or series of acts arising from the same criminal episode and the defendant is found guilty of more than one count on the basis of identical evidence, the sentences imposed must run concurrently." Juhl , 172 P.3d at 899.

¶ 48 Here, the prosecution alleged that C.O. and L.A. were both subject to multiple sexual assaults during the charged timeframe, but did not establish distinct acts of sexual assault. Rather, the prosecution relied on identical evidence to establish the sexual assault on a child, sexual assault on a child by one in a position of trust, and aggravated incest charges as to each victim. Thus, the trial court erred in imposing ten consecutive sentences based on the evidence presented and the jury's verdicts.

¶ 49 If the jury finds Aldridge guilty of more than one count per victim on retrial, the trial court must impose sentences in accordance with section 18-1-408(3), Juhl , 172 P.3d at 899, and Quintano v. People , 105 P.3d 585, 589-92 (Colo. 2005).

IV. Conclusion

¶ 50 Accordingly, the judgment and sentence are reversed, and the case is remanded for a new trial.

JUDGE BERNARD and JUDGE WELLING concur.

      The record does not reveal, and the parties do not explain, precisely when the trial court adopted this procedure. However, at a pretrial hearing less than a week before trial, the trial court represented that court staff had been exploring whether the closed-circuit "television advisement system might be configured to address the child witnesses." The prosecutor suggested that, assuming the CCTV did not work, the "best [alternative] [she] had was to screen the defendant off ... while the children testified in the same room." At the close of that hearing, the trial court said that it would continue to work on the CCTV technology.

      The record suggests that the trial court used the procedure here due to technological difficulties in having the children testify from another room and televising their testimony in the courtroom. To the extent the People suggested at oral argument that section 16-10-402, C.R.S. 2017, permits a trial court to remove a defendant from the courtroom during a child's in-court testimony if there are difficulties in setting up CCTV equipment (or no CCTV equipment at all), we disagree. One prerequisite to invoking the procedure in that statute is that "[c]losed-circuit television equipment is available for such use." § 16-10-402(1)(a)(III). If that equipment is not available (or suitable to comply with the statute), neither party can move to have a child testify from outside the courtroom, and the trial court cannot order such a procedure on its own motion.

      It is unclear from the record whether the trial court otherwise complied with the requirements of section 16-10-402(2)(a) by allowing only those authorized by the statute to remain in the courtroom. Although the parties and the trial court discussed section 16-10-402(2)(a)(V), and the trial court ruled that the children's aunt could remain in the courtroom when they testified, the record does not indicate whether the trial court excluded other spectators.

      Section 16-10-402(2)(a)(VI) authorizes, but does not require, the jury to be in the room with the child witness when he or she testifies by CCTV. The statute therefore appears to permit a procedure in which the defendant remains in the courtroom with the judge, while the prosecutor, defense counsel, and the jury are in another room with the child witness. We note that such a procedure may well raise the same due process concerns we address here because in that scenario the defendant would similarly be denied the opportunity to exert any psychological influence on the jury. However, Aldridge did not challenge the constitutionality of section 16-10-402(2)(a)(VI) in the trial court or on appeal, and we therefore express no opinion on the validity of that provision if implemented in such a fashion.


source: Caselaw Access Project

author: Opinion by JUDGE FOX

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joshua Thomas BOHL, Defendant-Appellant.
    Court of Appeals No. 16CA0644
    Colorado Court of Appeals, Division I.
    Announced November 1, 2018
    Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE FOX

¶ 1 Defendant, Joshua Thomas Bohl, appeals the trial court's decision denying him access to juror contact information. We affirm. Because the record lacks evidence of jury misconduct, the trial court did not abuse its discretion in declining to release juror contact information.

I. Background

¶ 2 A jury convicted Bohl of one count of first degree murder for killing his girlfriend, Jayme Hosier.

A. Bohl's Trial

¶ 3 During a four-day trial, the prosecution presented evidence that Bohl killed Hosier in a Commerce City apartment. Bohl initially told police that Hosier died when a television accidentally fell on her head, but the forensic pathologist determined that Hosier died from asphyxiation due to blunt force trauma to the neck. The key dispute at trial was whether Bohl had the requisite intent to commit first degree murder. The prosecution's pathologist said that pressure to Hosier's neck would have had to continue for three to five minutes before she died, but the defense expert testified that Hosier could have died sooner, helping to negate intent.

B. Post-Trial Hearings

¶ 4 The day after the verdict, a deputy district attorney who was not involved in prosecuting the case sent a text message to Shelley Hillesheim, the wife of jury foreman Mark Hillesheim. Mrs. Hillesheim and the deputy district attorney knew each other, and the deputy district attorney asked if Mr. Hillesheim would provide feedback on the trial and the prosecutors' performance during the case. Mrs. Hillesheim replied as follows:

The minute Mark got selected to sit on the case, I knew he would be the foreman too. I told him I was calling it. He took it very seriously too. It kind of amused me. He would come up and look up and research various scientific items that were presented, etc. He said he even mapped out his own timeline of events so he could try to put it together in his mind. He said he'd be more than happy to share his feedback. He took lots of notes and still is frustrated by certain things.

¶ 5 Following this communication, the People filed a "Notice of Juror Contact" with the trial court. In response, Bohl's counsel quickly filed a motion for a new trial. In addition to requesting a new trial, Bohl requested alternatively that the court hold a hearing on the incident and release the jurors' contact information.

¶ 6 At a hearing on Bohl's motion, the court directed the People to subpoena the Hillesheims to a January 7, 2016, hearing. The court declined to provide juror contact information to Bohl's counsel at that time, explaining, "I'm not planning on doing that right now. If we need to, we will. But I think right now ... we need to summon the juror and his wife into court."

¶ 7 At the January 7 hearing, the court informed the Hillesheims that they had been subpoenaed because it appeared that Mr. Hillesheim might have violated the court's order not to engage in outside investigation. The court proceeded to advise the Hillesheims

that if it's shown by either side that you violated an order of this Court, technically speaking, you could be found in contempt of this Court; and this Court could impose a sentence up to six months in the Adams County Jail or a fine or require that you pay restitution if in fact a mistrial is declared.

¶ 8 While the court intimated that it was not focused on pursuing contempt proceedings, it nonetheless advised the Hillesheims that "theoretically, that may occur; and so I think you may need to consult with an attorney to see what liability you may have in this matter before I proceed to a hearing."

¶ 9 At a later hearing, on February 16, 2016, defense counsel renewed her request for contact information for the other jurors. While the court did not completely foreclose that possibility, it expressed concern that CRE 606(b) precluded inquiry into the jury's deliberative process.

¶ 10 On February 16, Mrs. Hillesheim testified that, during trial, her husband had shown her that he was researching decomposition on the internet. Mrs. Hillesheim said the webpage displayed a picture of a pig with the title "decomposition." She testified that it was the only time she saw her husband researching decomposition or any other scientific items during the trial. Mrs. Hillesheim also testified that Mr. Hillesheim had created a timeline of events in the case, but that she had not seen it.

¶ 11 Mr. Hillesheim testified that he had "looked up decomposition of animals, which was brought to my interest [by] terms used in the case," but stated that he did not remember what websites he accessed. He said that he was motivated to look up decomposition because "it was all new" and he was interested from a personal standpoint because he was a hunter who grew up on a farm. He said he told his wife he was researching decomposition because "it was dealing with some sciences that are involved this week in the case."

¶ 12 Regarding the timeline, Mr. Hillesheim said he believed he had made some notes before the last day of trial, like "chicken scratch," but he could not recall what he "did with [them, or] if [they were] used for anything[.]" Ultimately, Mr. Hillesheim testified that his research was "nothing specific to anything in the case" and that he did not share the timeline or his decomposition research with the other jurors.

¶ 13 At the conclusion of the hearing, the court did not address Bohl's request for juror contact information, but said that it would not "subpoena the other 11 jurors" because "[w]e should only [subpoena other jurors] if there, in fact, is a good-faith belief that extraneous information may have been submitted to the jury[.]" The court reasoned that, based on the evidence presented, Bohl failed to show that extraneous evidence of decomposition had been presented to the jury, and even if it had been, there was no prejudice because decomposition was not an issue at trial. The court also found that because the timeline was based on "information that [Mr. Hillesheim] received at trial," the timeline was not extraneous information. Accordingly, the court denied Bohl's motion for a new trial and later sentenced Bohl to life in prison without the possibility of parole.

II. Juror Contact Information

¶ 14 Bohl argues that the trial court abused its discretion in denying his request for juror contact information because he was deprived of the opportunity to investigate and gather evidence to support his claim of juror misconduct. We disagree.

A. Preservation and Standard of Review

¶ 15 The parties agree that this issue was preserved.

¶ 16 Although there is no established standard of review in Colorado for a trial court's denial of a party's request for juror contact information, we conclude that we should review a court's denial of access to juror contact information for an abuse of discretion. Cf. People v. Pifer , 2014 COA 93, ¶ 19, 350 P.3d 936 ("We review [defendant's Crim. P. 24(b)(1)(X) challenge based on bias] for an abuse of discretion[.]"); People v. Pena-Rodriguez , 2012 COA 193, ¶ 69, 412 P.3d 461 ("Assuming, while not deciding, that the trial court erred or abused its discretion in applying Crim. P. 24(a)(4) and Crim. P. 33(c), we find any error harmless."), aff'd , 2015 CO 31, 350 P.3d 287, rev'd on other grounds , 580 U.S. ----, 137 S.Ct. 855, 197 L.Ed.2d 107 (2017) ; People v. Garrison , 2012 COA 132M, ¶ 7, 303 P.3d 117 (reviewing the trial court's decision under Crim. P. 24(g) -allowing juror questions-for an abuse of discretion). See generally King v. United States , 576 F.2d 432, 438 (2d Cir. 1978) (recognizing that although the trial judge has discretion to disclose juror contact information, "[t]here is a judicial reluctance" to allow post-verdict contact with jurors); Brewington v. State , 981 N.E.2d 585, 593-94 (Ind. Ct. App. 2013) (concluding that the trial court correctly balanced the needs of effective trial administration against Brewington's constitutional rights and did not abuse its discretion in granting the State's request for an anonymous jury), aff'd in part and vacated in part , 7 N.E.3d 946 (Ind. 2014) ; Golnick v. Callender , 290 Neb. 395, 860 N.W.2d 180, 195 (2015) (concluding that the trial court did not abuse its discretion in denying Golnick's request for juror contact information after the jurors completed their service and applying a statutory "good cause" standard to the disclosure of juror information). A trial court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or if it misconstrues or misapplies the law. People v. Relaford , 2016 COA 99, ¶ 25, 409 P.3d 490.

B. Law and Analysis

¶ 17 Crim. P. 24(a)(4) says that although "[j]urors shall not be required to disclose personal locating information ... and such information shall not be maintained in files open to the public[,] [t]he trial judge shall assure that parties and counsel have access to appropriate and necessary locating information." While Crim. P. 24(a)(4) is more often raised in pre-evidentiary proceedings, such as voir dire, Bohl relies on the rule post-trial, arguing that the trial court abused its discretion by failing to provide the requested juror contact information.

¶ 18 The United States Constitution does not guarantee a defendant the right to question jurors post-verdict. Pena-Rodriguez , ¶ 68. And though CRE 606(b) limits the circumstances under which a juror may testify post-trial, it provides an exception for "extraneous prejudicial information ... improperly brought to the jurors' attention." CRE 606(b)(1). Bohl seeks juror contact information to strengthen his motion for a new trial based on jury misconduct via exposure to "extraneous prejudicial information." Invoking Crim. P. 24(a)(4), Bohl argues that access to juror contact information is "appropriate and necessary" because the defense cannot otherwise contact the jurors to investigate potential jury misconduct. We disagree.

¶ 19 Following Bohl's motion for a new trial, in which he requested juror contact information, the trial court properly held a hearing to determine the extent of any potential jury misconduct. See Wiser v. People , 732 P.2d 1139, 1143 (Colo. 1987) ("In most cases involving juror misconduct, the trial court should hold a hearing before deciding whether there is a reasonable possibility that the misconduct affected the jury's verdict."). At the hearing, Mr. Hillesheim and his wife testified that Mr. Hillesheim's out-of-court research was limited to research on decomposition, and Mr. Hillesheim denied sharing his out-of-court research with other jurors. Mr. Hillesheim also explained that the timeline he created was based on testimony and evidence presented at trial, and, thus, he did not rely upon out-of-court research in creating the timeline.

¶ 20 At trial, the parties agreed that the victim's body was decomposed when the prosecution's pathologist performed the autopsy. The key issue was how long the victim had endured blunt force trauma to the neck before she died, as the timing was used to argue whether Bohl had the requisite intent for first degree murder. Because decomposition was not an issue at trial, the trial court found that Mr. Hillesheim's research did not prejudice Bohl. Further, because Mr. Hillesheim testified that he did not present out-of-court research to other jurors, the court properly concluded that no extraneous information could have influenced the verdict. See id. at 1142 (stating that courts apply an objective test to determine if there is a "reasonable possibility" that extraneous information affected the verdict before concluding that a new trial is required); People v. Holt , 266 P.3d 442, 444 (Colo. App. 2011) (holding that the disclosure of extraneous information only requires a new trial if the information was "improperly before the jury" and it "posed the reasonable possibility of prejudice to the defendant" (quoting Kendrick v. Pippin , 252 P.3d 1052, 1063 (Colo. 2011) ) ); see also United States v. Davila , 704 F.2d 749, 754-55 (5th Cir. 1983) (concluding that where the defendants failed to make any preliminary showing of misconduct in the jury's deliberations in hopes of uncovering an impropriety, the trial judge acted properly in denying the defendants' motion to interview jurors post-verdict).

¶ 21 We perceive no abuse of discretion in the trial court's refusal to subpoena the other jurors or to furnish their contact information to the defense. Bohl argues that without the juror contact information, the trial court precluded the defense from investigating the truthfulness of Mr. Hillesheim's claim that he did not present outside research to other jurors. Bohl contends the Hillesheims' testimony was inconsistent with Mrs. Hillesheim's text message, as Mrs. Hillesheim's message referenced Mr. Hillesheim's research on "various scientific items," and his research violated a court order not to conduct outside research. Accordingly, Bohl reasons that additional investigation is necessary to determine if there was jury misconduct.

¶ 22 But the trial court found the Hillesheims' testimony persuasive, a determination we may not second-guess. See People v. Harlan , 109 P.3d 616, 627-28 (Colo. 2005) (noting that the trial court, in finding whether jurors relied upon extraneous prejudicial information, "had to engage in difficult credibility determinations" and stating on appeal, "we cannot second-guess determinations of the trial court regarding witness credibility"). Because we defer to a trial court's factual and credibility determinations when supported by the record, and given the speculative record evidence of jury misconduct, we perceive no abuse of discretion in denying Bohl access to juror contact information.

¶ 23 Bohl also argues that he needed to interview other jurors before determining the truthfulness of the Hillesheims' testimony because their testimony was guarded given their fear of being held in contempt of a court order. But this is mere speculation. To follow Bohl's argument, we would need to conclude that the Hillesheims were lying about the extent of Mr. Hillesheim's out-of-court research and that Mr. Hillesheim also lied about not sharing out-of-court research with other jurors. Because we defer to the trial court's credibility determinations and Bohl has not alleged specific extraneous prejudicial information to which the jury may have been exposed, we cannot conclude that Bohl was entitled to obtain juror contact information to further investigate jury misconduct. See Stewart v. Rice , 47 P.3d 316, 322 (Colo. 2002) (recognizing that one of the "fundamental" purposes of CRE 606(b) is to "protect jurors from harassment and coercion"); see also United States v. Riley , 544 F.2d 237, 242 (5th Cir. 1976) ("Historically, interrogations of jurors have not been favored by federal courts except where there is some showing of illegal or prejudicial intrusion into the jury process.") (emphasis added).

¶ 24 Bohl's reliance on Harlan and Pena-Rodriguez , in arguing that we should compel the trial court to provide Bohl with the contact information to facilitate his investigation, is misplaced. In Pena-Rodriguez , ¶ 6, after entry of the verdict, two jurors contacted defense counsel to disclose racial animus present during jury deliberations. The defense did not need to request juror contact information because two jurors voluntarily disclosed another juror's racial animus. And because there was direct evidence of jury misconduct, the defense's questioning of other jurors was warranted and did not constitute a "fishing expedition." Id . at ¶ 68 (quoting Journal Publ'g Co. v. Mechem , 801 F.2d 1233, 1236 (10th Cir. 1986) ).

¶ 25 In Harlan , defense counsel learned of jury misconduct after the jury's death penalty verdict when defense counsel's investigator contacted jurors months later to interview them, and the defense learned that some jurors had used the Bible to determine whether the death penalty was justified for murder. 109 P.3d at 622. It is not clear how defense counsel had obtained the jurors' contact information, but defense counsel presented direct evidence of jury misconduct via the use of extraneous prejudicial information, similar to the evidence of jury misconduct in Pena-Rodriguez .

¶ 26 In this case, in contrast, an investigation has already been conducted and no evidence of jury misconduct was revealed. Following the People's proper disclosure of the text message and Bohl's motion for a new trial, Bohl had the opportunity to question the jury foreman and his wife. However, the trial court determined from the Hillesheims' testimony that no jury misconduct had occurred, as no extraneous prejudicial information had been presented to other jurors. And any extraneous information that Mr. Hillesheim obtained was not relevant to a key issue at trial. See Wiser , 732 P.2d at 1143. Further, no other jurors reported jury misconduct to defense counsel or the judge. People v. Wadle , 97 P.3d 932, 934 (Colo. 2004) ("[T]wo jurors contacted the court and ... expressed their concern that their review of the [i]nternet definition [of a drug relevant to the case] violated the court's instructions."); Wiser , 732 P.2d at 1140 (defense counsel learned of jury misconduct from an "informal meeting in the judge's chambers with the members of the jury after the jury returned its verdicts"). Accordingly, given the lack of record evidence to support prejudice from jury misconduct, we defer to the trial court's decision not to furnish juror contact information.

¶ 27 Given (1) that the trial court conducted a hearing on the jury's potential exposure to extraneous prejudicial information; (2) the speculative nature of Bohl's request for juror contact information; and (3) CRE 606(b) 's fundamental purpose of protecting jurors and their deliberations, the trial court's decision not to release juror contact information to the defense was not manifestly unreasonable, arbitrary, or unfair, and it did not misapply or misinterpret the law. See Relaford , ¶ 25 ; Wiser , 732 P.2d at 1142 (holding that the use of the objective test to determine whether extraneous information affected a verdict "is consistent with CRE 606(b) 's purpose of protecting the privacy of jurors"). Accordingly, we discern no abuse of discretion by the trial court.

III. Conclusion

¶ 28 The order is affirmed.

JUDGE TAUBMAN and JUDGE TERRY concur.

      Bohl does not appeal his conviction, nor the trial court's denial of his motion for a new trial. Rather, Bohl limits his appeal to the issue of whether the trial court abused its discretion in denying him access to juror contact information. We have jurisdiction over his appeal as the court's denial of access to juror contact information was part of the "final judgment" denying Bohl's motion for a new trial. See People v. Cochran , 176 Colo. 364, 490 P.2d 684, 685 (1971).


author: Opinion by JUDGE WELLING

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry Gene LANCASTER, Defendant-Appellant.
    Court of Appeals No. 16CA1165
    Colorado Court of Appeals, Division I.
    Announced November 29, 2018
    Cynthia H. Coffman, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado, for Defendant-Appellant
   Opinion by JUDGE WELLING

¶ 1 Defendant, Larry Gene Lancaster, contends that the district court erroneously denied his Crim. P. 35(c) motion alleging that his trial counsel was ineffective for failing to perfect his appeal. We agree and, therefore, reverse the district court's order denying Lancaster's Crim. P. 35(c) motion and order that Lancaster is entitled to file his direct appeal out of time.

I. Background

¶ 2 In 2006, Lancaster was arrested after a teenage boy reported that Lancaster had provided him with marijuana and alcohol and initiated sexual contact. A second teenage boy later came forward with similar allegations. Lancaster was charged with sexual assault on a child (two counts), bribing a witness or victim (two counts), sexual assault, unlawful sexual contact, and contributing to the delinquency of a minor.

¶ 3 In May 2007, Lancaster went to trial. He was represented at trial by Steven Newell. Newell and Lancaster executed a fee agreement detailing the scope of Newell's representation. The termination provision of that fee agreement provided as follows:

Under Colorado Court rules, representation is terminated at the conclusion of trial court proceedings, which essentially is after a finding of not guilty or a sentencing, unless otherwise directed by the Court or by agreement between you and Newell Vonachen and Weeks to represent you beyond that point.

¶ 4 The jury ultimately found Lancaster guilty on six of the seven counts. In October 2007, he received an indeterminate sentence of fourteen years to life. In December 2007, Lancaster filed a motion requesting additional presentence confinement credit. In that motion, Lancaster described himself as pro se. Neither he nor Newell filed a notice of appeal.

¶ 5 In September 2010, Lancaster filed a pro se Crim. P. 35(c) motion alleging that his trial counsel had been constitutionally ineffective by failing to file a notice of appeal. In his motion, Lancaster requested the appointment of postconviction counsel. The district court appointed the public defender to represent him in the postconviction proceedings.

¶ 6 Neither the public defender nor the district court took any action on Lancaster's Crim. P. 35(c) motion for more than five years. In February 2016, sixty-four months after Lancaster's original motion was filed, postconviction counsel filed a supplemental Crim. P. 35(c) motion. In the supplemental motion, Lancaster renewed the ineffective assistance of trial counsel claim from his September 2010 motion and added five additional claims. The district court ruled that the additional claims were time barred, but it held an evidentiary hearing on Lancaster's first claim-that his trial counsel's failure to perfect his appeal deprived him of constitutionally effective trial counsel. As reflected in the district court's subsequent order, Lancaster based his claim on "ABA recommended standards regarding criminal justice practice," not " Crim. P. 44 or ... case law regarding ineffective assistance of counsel."

¶ 7 Newell and Lancaster testified at the hearing. In a four-page order issued on May 26, 2016, the district court found that Lancaster had met with Newell after his conviction but before sentencing and stated his desire to appeal his conviction. The district court also found that Newell met with Lancaster three times after trial, during which time Newell "made clear, in writing and verbally, that he would not act as [Lancaster's] attorney for an appeal." Based on its conclusion that Newell's representation terminated before the alleged ineffective assistance occurred, the district court denied Lancaster's ineffective assistance of trial counsel claim.

¶ 8 This appeal followed.

II. Analysis

¶ 9 On appeal, Lancaster relies on People v. Baker , 104 P.3d 893 (Colo. 2005), contending that Newell was constitutionally ineffective in failing to file a notice of appeal on his behalf. The People respond that Lancaster's ineffective assistance claim must fail because Newell's attorney-client relationship with Lancaster terminated pursuant to the undisputed terms of the fee agreement after Lancaster was sentenced on October 1, 2007. In addition, the People contend that Baker is distinguishable. We are unpersuaded by either of the People's contentions and conclude that Newell's failure to either file a notice of appeal on Lancaster's behalf or withdraw pursuant to Crim. P. 44(d) and secure the appointment of the public defender to represent Lancaster on direct appeal constituted ineffective assistance of trial counsel under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A. Law

1. Ineffective Assistance on Appeal

¶ 10 The Sixth Amendment of the United States Constitution and article II, section 16 of the Colorado Constitution guarantee the effective assistance of counsel. Strickland , 466 U.S. at 686, 104 S.Ct. 2052 ; Lanari v. People , 827 P.2d 495, 500 (Colo. 1992). Claims of ineffective assistance of counsel are governed by the test set forth in Strickland . Under this test, a defendant must show that (1) counsel's representation "fell below an objective standard of reasonableness" and (2) counsel's deficient performance prejudiced the defendant. Strickland , 466 U.S. at 688, 694, 104 S.Ct. 2052.

¶ 11 Where a defendant's claim is that trial counsel failed to perfect an appeal, we do not analyze the merits of the defendant's appellate claims. See People v. Long , 126 P.3d 284, 286-87 (Colo. App. 2005). Rather, a defendant who shows that counsel performed deficiently in failing to perfect the defendant's appeal will have established both prongs of the Strickland test. Id. In Colorado, "the right to direct appeal of a criminal conviction is fundamental," Peterson v. People , 113 P.3d 706, 708 (Colo. 2005), and "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable," Roe v. Flores-Ortega , 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In such cases, "[t]he prejudice resulting from the failure to file a notice of appeal is not in the outcome of the proceeding itself, but in the forfeiture of the proceeding itself." Long , 126 P.3d at 286-87 (citing Flores-Ortega , 528 U.S. at 483, 120 S.Ct. 1029 ).

2. Baker

¶ 12 The Baker court determined that good cause existed under C.A.R. 26(b) to permit the defendant to pursue an untimely direct appeal because trial counsel's failure to perfect the defendant's appeal constituted ineffective assistance of counsel under Strickland . 104 P.3d at 898. Baker warrants close examination.

¶ 13 Baker was convicted of multiple felony offenses. After sentencing, he prepared a handwritten notice of appeal, which he showed to his trial counsel. Baker and his counsel agreed that counsel would not represent Baker on appeal, but counsel offered to type and submit Baker's notice of appeal "as a courtesy." Id. at 895. But counsel ultimately failed to file the notice of appeal in the correct court, and Baker's appeal was thus not perfected. Id.

¶ 14 Two years later, after Baker learned that the notice of appeal had been incorrectly filed in the district court, he filed a new notice of appeal. This court issued an order directing Baker to show cause why the notice of appeal should not be dismissed for lack of jurisdiction due to its untimeliness. Baker argued in response that dismissal of his appeal would be unfairly prejudicial, as the failure to file a timely notice of appeal was caused by the ineffective assistance of his trial counsel, who had failed to perfect his direct appeal. A division of this court dismissed his appeal as untimely. Id.

¶ 15 Baker then petitioned the supreme court for relief pursuant to C.A.R. 21. The supreme court issued a rule to show cause why his appeal should not be accepted and ultimately concluded that the court of appeals abused its discretion in rejecting Baker's appeal. It held that, notwithstanding counsel's agreement with Baker that he would not represent him on appeal, Crim. P. 44(e) dictated that counsel's responsibilities to his client did not end at sentencing. Id. at 896. Crim. P. 44(e) provides as follows:

(1) Unless otherwise directed by the trial court or extended by an agreement between counsel and a defendant, counsel's representation of a defendant, whether retained or appointed, shall terminate at the conclusion of trial court proceedings and after a final determination of restitution. Trial court proceedings shall conclude at the point in time:
(I) When dismissal is granted by the court and no timely appeal has been filed;
(II) When an order enters granting a deferred prosecution, deferred sentence, or probation;
(III) After a sentence to incarceration is imposed upon conviction when no motion has been timely filed pursuant to Crim. P. 35(b) or such motion so filed is ruled on; or
(IV) When a notice of appeal is filed by the defendant.

¶ 16 In Baker , trial court proceedings had not concluded within the meaning of subsection (I), (II), or (III) when the then-applicable forty-five-day period for Baker to file a notice of appeal under C.A.R. 4(b) expired. Nor had appellate counsel been appointed. The supreme court held that Baker's trial counsel had, therefore, provided constitutionally ineffective assistance under Strickland in failing to properly file Baker's notice of appeal. The supreme court considered trial counsel's ineffective assistance "as a factor contributing to a finding of good cause" for permitting Baker to pursue an untimely direct appeal. Id. at 897.

B. Reversal Is Required Under Baker

¶ 17 On appeal, the People contend that Newell's failure to file a notice of appeal on Lancaster's behalf was not ineffective assistance because Newell's representation of him terminated when Lancaster was sentenced on October 1, 2007. The People, in arguing that the attorney-client relationship terminated before the alleged ineffective assistance occurred, rely on the termination provision of the fee agreement as well as Lancaster's testimony describing his understanding of when Newell's representation of him ended. In light of Baker , however, we conclude that Newell's representation of Lancaster did not terminate when the People contend, but instead, as prescribed by Crim. P. 44(e), continued through the deadline for filing a notice of appeal.

1. The Termination of Newell's Attorney-Client Relationship with Lancaster is Controlled by Crim. P. 44(e), Not the Fee Agreement

¶ 18 In Baker , the supreme court held that, notwithstanding an agreement between a defendant and trial counsel providing that counsel would not represent the defendant on appeal, Crim. P. 44(e) dictates when the representation terminates. See Baker , 104 P.3d at 896 ("Even though counsel may have mistakenly believed that because he had not agreed to represent Baker on appeal, his responsibilities to his client ended at sentencing, ... Crim. P. 44(e) provides otherwise."). Termination of representation pursuant to Crim. P. 44(e) requires the occurrence of an event set forth in subsections (I) through (IV) unless "otherwise directed by the trial court or extended by an agreement between counsel and a defendant." (Emphasis added.) Crim. P. 44(e) does not, however, contemplate any exception in cases where counsel and the defendant have agreed to terminate the representation at an earlier date -as in Baker and this case. To terminate representation earlier requires leave of the court. See Crim. P. 44(d)(1).

¶ 19 In their brief on appeal, the People do not discuss Crim. P. 44. Instead, the People argue that Lancaster's testimony establishes that Newell's representation of him terminated in accordance with the fee agreement. Specifically, they point to Lancaster's testimony at his Crim. P. 35(c) hearing in which he stated that, having met with Newell prior to his sentencing hearing, he understood that Newell would provide him no further assistance. But we disagree that the attorney-client relationship terminated based upon Lancaster's subjective understanding.

¶ 20 In support of their position, the People cite to People v. Bennett , 810 P.2d 661, 664 (Colo. 1991) -a civil case-for the proposition that counsel's duty to a client continues "until the client clearly understands, or reasonably should understand, that the relationship is no longer to be depended upon." This is not the applicable standard in a criminal case, however. Were it the standard, Crim. P. 44 subsections (d) (withdrawal of counsel) and (e) (termination of representation) would be rendered superfluous. See Welby Gardens v. Adams Cty. Bd. of Equalization , 71 P.3d 992, 995 (Colo. 2003) (interpretations that render statutory provisions superfluous should be avoided); see also People v. Bueno , 2018 CO 4, ¶ 18, 409 P.3d 320 (rules of criminal procedure are construed employing the same interpretive rules applicable to statutory construction). Yet the People, in their appellate brief, do not attempt to reconcile their position with Crim. P. 44. However, we conclude that Crim. P. 44(e) is dispositive on the issue of when Newell's representation of Lancaster terminated.

2. Baker Is Not Meaningfully Distinguishable

¶ 21 The People contend that Baker is distinguishable, in any event. They contend that Baker was "[b]ased on" the fact that Baker's trial counsel agreed to submit his notice of appeal but then failed to do so. They argue that, because Newell never agreed to submit Lancaster's notice of appeal, there was no detrimental reliance and, therefore, Baker is inapposite. While we agree that Lancaster's situation is different from Baker in this way, we disagree that trial counsel's agreement in this regard was material to the holding in Baker .

¶ 22 Trial counsel's agreement to submit the notice of appeal was immaterial to the outcome in Baker . Our supreme court held that trial counsel was obligated to ensure that Baker's appeal was perfected because he was counsel of record when the period for filing a notice of appeal under C.A.R. 4(b) expired. 104 P.3d at 896. A careful reading of Baker makes clear that its holding in no way hinged on Baker's counsel's agreement to file the notice of appeal as a courtesy. Instead, the supreme court explained that trial counsel remained Baker's counsel of record because appellate counsel had not been appointed, trial counsel had not moved to withdraw, and the representation had not terminated pursuant to Crim. P. 44(e). See id. at 896-97. Trial counsel's agreement to type and submit Baker's notice of appeal was immaterial to the holding because the court concluded that counsel had a duty to ensure that Baker's appeal was perfected. See id.

¶ 23 Baker is not, therefore, meaningfully distinguishable based on the fact that Newell did not offer to submit Lancaster's notice of appeal. Instead, because he remained Lancaster's counsel of record until he withdrew or the representation terminated-neither of which happened before the period for Lancaster to file a notice of appeal under C.A.R. 4(b) expired-Newell, knowing that Lancaster wanted to appeal, had a duty to ensure that Lancaster's appeal was perfected. See id.

3. Newell's Failure to File Lancaster's Notice of Appeal Was Ineffective Assistance of Counsel

¶ 24 Newell's failure to file a notice of appeal on Lancaster's behalf without having been granted leave to withdraw amounted to constitutionally ineffective assistance of counsel under Strickland . Both prongs of the Strickland test are satisfied because Lancaster has shown that Newell disregarded specific instructions to file a notice of appeal. See Long , 126 P.3d at 286-87.

¶ 25 We review the district court's factual findings for abuse of discretion, but review de novo the application of law to those factual findings. Carmichael v. People , 206 P.3d 800, 807-08 (Colo. 2009).

¶ 26 The district court held an evidentiary hearing on Lancaster's Rule 35(c) petition at which it heard testimony from both Newell and Lancaster. Based on this testimony, the district court found that Lancaster had communicated to Newell his desire to appeal. Indeed, the record establishes that Lancaster wanted to appeal and that Newell understood that desire. Furthermore, based on the discussion in Part II.B.2 of this opinion, Newell had a duty following sentencing to ensure that Lancaster's appeal was perfected. For these reasons, we conclude that Lancaster has established ineffective assistance of counsel. See Baker , 104 P.3d at 897 ; Long , 126 P.3d at 287 ; see also People v. Houser , 2013 COA 11, ¶ 42 n.5, 337 P.3d 1238 (noting that counsel's "failure to perfect an appeal for a defendant who desired to appeal would be per se unreasonable"). Accordingly, we reverse the district court's order denying Lancaster's postconviction motion alleging ineffective assistance of counsel.

C. Lancaster Is Entitled to Pursue His Direct Appeal Out of Time

¶ 27 Because the ineffective assistance of trial counsel deprived Lancaster of his right to direct appeal of his conviction, we conclude that he is entitled to pursue a direct appeal out of time. See Peguero v. United States , 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) ("[W]hen counsel fails to file a requested appeal, a defendant is entitled to ... an appeal without showing that his appeal would likely have had merit."); People v. Hill , 296 P.3d 121, 125 (Colo. App. 2011) (the remedy for a defendant whose counsel failed to perfect an appeal is reinstatement of the defendant's right to an appeal); Long , 126 P.3d at 287 (same). Pursuant to C.A.R. 4(b), Lancaster has forty-nine days from the issuance of our mandate in which to file his direct appeal. People v. Boespflug , 107 P.3d 1118, 1121 (Colo. App. 2004).

D. Lancaster's Other Claims

¶ 28 Because we conclude that trial counsel's failure to perfect Lancaster's appeal was ineffective assistance under Strickland entitling Lancaster to pursue a direct appeal, we need not and do not reach his additional claim in which he contends that the postconviction court erroneously denied the claims brought in his supplemental Crim. P. 35(c) motion as time barred.

III. Conclusion

¶ 29 For these reasons, we reverse the postconviction court's order denying Lancaster's Crim. P. 35(c) motion. Based on this disposition, Lancaster may file his notice of direct appeal in this court within forty-nine days from issuance of the mandate, as provided by C.A.R. 4(b).

JUDGE TAUBMAN and JUDGE BERNARD concur.

      In 2011, the rule was amended to allow forty-nine days. Rule Change 2011(19), Colorado Appellate Rules (Amended and Adopted by the Court En Banc, Dec. 14, 2011), https://perma.cc/KLV3-S9CE.

      If Newell did not wish to file a notice of appeal on Lancaster's behalf, Newell could have discharged his duty to Lancaster by timely moving to withdraw (for instance, at sentencing) and requesting the appointment of the public defender to represent Lancaster on appeal, as Lancaster automatically qualified for the services of the public defender by virtue of his custodial status following sentencing. Ronquillo v. People , 2017 CO 99, ¶ 34, 404 P.3d 264.

      We note that, although not raised by either party on appeal, the record shows that the district court did not discharge its duty at sentencing, pursuant to Crim. P. 44(e)(2), to "inform the defendant when representation shall terminate."


author: Opinion by JUDGE WEBB

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher Joseph TAYLOR, Defendant-Appellant.
    Court of Appeals No. 17CA0280
    Colorado Court of Appeals, Division III.
    Announced December 13, 2018
    Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Lisa A. Polansky Attorney at Law, LLC, Lisa A. Polansky, Boulder, Colorado, for Defendant-Appellant
   Opinion by JUDGE WEBB

¶ 1 This case is about two bites at the proverbial apple. Defendant, Christopher Joseph Taylor, appeals the postconviction court's order denying his second Crim. P. 35(c) motion. We affirm because the motion was successive. Answering an undecided question, we hold that Crim. P. 35(c)(3)(VII) supersedes the rule stated in People v. Naranjo , 738 P.2d 407, 409 (Colo. App. 1987), that a defendant can file a second Crim. P. 35(c) motion raising new postconviction claims if the defendant filed an initial Crim. P. 35(c) motion pro se.

I. Background

¶ 2 A jury found defendant guilty of first degree murder, attempted first degree murder, and assault. On direct appeal, a division of this court affirmed the judgment of conviction. See People v. Taylor , 2010 WL 3504825 (Colo. App. No. 06CA2614, Sept. 9, 2010) (not published pursuant to C.A.R. 35(f) ) ( Taylor I ).

¶ 3 Defendant moved for transcripts at state expense to prepare a Crim. P. 35(c) motion. The postconviction court denied the motion.

¶ 4 A few months later, defendant filed a pro se Crim. P. 35(c) motion raising seven claims, most of them asserting that his trial counsel had provided ineffective assistance. He also requested the appointment of postconviction counsel.

¶ 5 The postconviction court summarily denied defendant's Crim. P. 35(c) motion and his request for the appointment of postconviction counsel. A division of this court affirmed. See People v. Taylor , 2014 WL 171833 (Colo. App. No. 12CA1984, Jan. 16, 2014) (not published pursuant to C.A.R. 35(f) ) ( Taylor II ). The opinion does not indicate that defendant appealed the denial of his motion for transcripts at state expense.

¶ 6 Defendant then filed a second pro se Crim. P. 35(c) motion, which he amended. He renewed some of the claims from his first Crim. P. 35(c) motion and raised new claims. This time, the postconviction court appointed counsel, who filed a supplemental motion. The prosecution responded, arguing in part that the new claims in the second motion were barred as successive.

¶ 7 The postconviction court issued a written order denying the second Crim. P. 35(c) motion without a hearing. The court first held that the claims from defendant's first Crim. P. 35(c) motion were barred as successive under Crim. P. 35(c)(3)(VI). But the court did not bar defendant's new claims as successive. Instead, the court explained that it was "not convinced" that Crim. P. 35(c)(3)(VII) supersedes prior case law holding that a defendant can raise new postconviction claims in a second Crim. P. 35(c) motion if the first Crim. P. 35(c) motion was filed pro se. The court denied the new claims on the merits.

II. Standard of Review

¶ 8 We review de novo. See People v. Lopez , 2015 COA 45, ¶ 68, 399 P.3d 129 (an appellate court reviews de novo a postconviction court's denial of a Crim. P. 35(c) motion without a hearing); People v. Bonan , 2014 COA 156, ¶ 26, 357 P.3d 231 (an appellate court reviews de novo whether a Crim. P. 35(c) motion is properly denied as successive). And we may affirm a district court's ruling for any reason supported by the record. People v. Heisler , 2017 COA 58, ¶ 44.

III. Crim. P. 35(c)(3)(VI)

¶ 9 Starting with the claims in defendant's second Crim. P. 35(c) motion that he had raised in his first Crim. P. 35(c) motion, defendant argues that the claims are not barred as successive under Crim. P. 35(c)(3)(VI) because they were not "raised and resolved" in the proceedings on the first Crim. P. 35(c) motion. See Crim. P. 35(c)(3)(VI) ("The court shall deny any claim that was raised and resolved in a prior appeal or postconviction proceeding on behalf of the same defendant."). He emphasizes that in preparing and filing his first Crim. P. 35(c) motion, he was not represented by counsel and did not have access to the trial transcripts.

¶ 10 But defendant does not cite, nor are we aware of, any authority holding that a defendant does not "raise" a claim within the meaning of Crim. P. 35(c)(3)(VI) merely because the defendant is pro se or lacks access to trial transcripts. To "raise" a claim means "to bring [it] up for consideration." Webster's Third New International Dictionary 1877 (2002); see also Black's Law Dictionary 1449 (10th ed. 2014) ("[t]o bring [it] up for discussion or consideration; to introduce or put forward"). Defendant's first Crim. P. 35(c) motion addressed seven claims in twenty-two pages of argument supported by twenty-six pages of exhibits. So, we conclude that he "raised" those claims in his first Crim. P. 35(c) motion within the meaning of Crim. P. 35(c)(3)(VI).

¶ 11 And we further conclude that the claims were "resolved" within the meaning of Crim. P. 35(c)(3)(VI). After all, the postconviction court denied the first Crim. P. 35(c) motion in a written order and a division of this court affirmed. See Taylor II .

¶ 12 For these reasons, we discern no error in the postconviction court's ruling that the renewed claims in the second Crim. P. 35(c) motion are barred as successive under Crim. P. 35(c)(3)(VI). But whether defendant's new claims were equally successive presents a closer question.

IV. Crim. P. 35(c)(3)(VII)

¶ 13 Addressing the new postconviction claims in the second Crim. P. 35(c) motion, the Attorney General argues that these claims are barred as successive under Crim. P. 35(c)(3)(VII). Defendant responds that the claims are not because Crim. P. 35(c)(3)(VII) -which was added to Crim. P. 35 in 2004-did not supersede prior case law holding that a defendant can raise new postconviction claims in a second Crim. P. 35(c) motion if the first Crim. P. 35(c) motion was filed pro se. See, e.g. , People v. Hubbard , 184 Colo. 243, 248, 519 P.2d 945, 948 (1974) ; Naranjo , 738 P.2d at 409. We conclude that these cases have been superseded by Crim. P. 35(c)(3)(VII).

¶ 14 In Hubbard , the supreme court held that "all allegations relating to the violation of a defendant's constitutional rights should be included in a single Crim. P. 35(b) motion." Id. at 249, 519 P.2d at 948. But the supreme court premised that holding on a defendant being represented by postconviction counsel. It explained that "without the assistance of counsel, a convicted defendant would be hard-pressed to assemble into a single Crim. P. 35(b) motion all of the legal arguments which might result in post-conviction relief." Id. at 248, 519 P.2d at 948.

¶ 15 In Naranjo , a division of this court applied Hubbard and held that if a defendant is not represented by counsel when the defendant files a first Crim. P. 35(c) motion, the defendant may file a second Crim. P. 35(c) motion raising new postconviction claims. See 738 P.2d at 409.

¶ 16 Importantly, when Hubbard and Naranjo were decided, the provision in Crim. P. 35 barring successive postconviction claims provided as follows: "The court need not entertain a second motion or successive motions for similar relief based upon the same or similar allegations on behalf of the same prisoner." Crim. P. 35(c)(3) (1987) (emphasis added); Crim. P. 35(b)(2) (1974) (emphasis added). Thus, Crim. P. 35(c) barred only claims that had already been raised in a prior Crim. P. 35(c) motion. It did not bar new postconviction claims raised for the first time in a second or subsequent Crim. P. 35(c) motion. Further, the language was permissive: a court "need not" entertain a successive postconviction motion. Crim. P. 35(c)(3) (1987); Crim. P. 35(b)(2) (1974).

¶ 17 In 2004, the supreme court added Crim. P. 35(c)(3)(VII), which differs from the old rule in two ways. First, this provision now bars postconviction claims that "could have been presented in an appeal previously brought or postconviction proceeding previously brought." Crim. P. 35(c)(3)(VII). Second, the new language is mandatory rather than permissive: a postconviction court "shall" deny any such new postconviction claims. Crim. P. 35(c)(3)(VII) ; see Willhite v. Rodriguez-Cera , 2012 CO 29, ¶ 17, 274 P.3d 1233 ("The word 'shall' connotes a mandatory requirement.").

¶ 18 Crim. P. 35(c)(3)(VII) lists five exceptions to the general rule barring new postconviction claims raised in a second or subsequent Crim. P. 35(c) motion. But defendant does not argue that any of those five enumerated exceptions applies. Rather, he merely repeats that the rule from Hubbard and Naranjo remains in full force.

¶ 19 This argument falls short because Crim. P. 35(c)(3)(VII) does not include an exception codifying Naranjo . If the supreme court had intended to preserve the rule from Naranjo when it adopted Crim. P. 35(c)(3)(VII), it could have specifically accounted for a defendant who filed the first Crim. P. 35(c) motion pro se. Because it did not do so, we treat that omission as intentional. See Cain v. People , 2014 CO 49, ¶ 13, 327 P.3d 249 ("Under the rule of interpretation expressio unius exclusio alterius , the inclusion of certain items implies the exclusion of others.") (citation omitted); In re Marriage of Chalat , 112 P.3d 47, 57 (Colo. 2005) ("[W]e must presume that the General Assembly, having chosen to speak with such exactitude, did not intend any implied exceptions."); see also People v. Steen , 2014 CO 9, ¶ 10, 318 P.3d 487 ("We employ the same interpretive rules applicable to statutory construction to construe a rule of criminal procedure.").

¶ 20 Crim. P. 35(c)(3)(VII) has been in effect throughout this case. Thus, when defendant filed his first Crim. P. 35(c) motion, he was on notice that he needed to include all of his postconviction claims in that Crim. P. 35(c) motion. See Adams v. Sagee , 2017 COA 133, ¶ 12, 410 P.3d 800 ("[T]he state may require pro se defendants in criminal cases to adhere to procedural rules, though their cases often implicate constitutional rights."); cf. People v. McPherson , 53 P.3d 679, 682 (Colo. App. 2001) (A "defendant's indigence, ignorance of the law, and lack of legal counsel do not amount to justifiable excuse or excusable neglect for an untimely filed collateral attack.").

¶ 21 For these reasons, we reject defendant's argument that being pro se when he filed his first Crim. P. 35(c) motion is an exception to the rule barring a second Crim. P. 35(c) motion raising new postconviction claims.

¶ 22 Defendant also argues that he should have been allowed to file a second Crim. P. 35(c) motion raising new claims because, when he filed his first Crim. P. 35(c) motion, he did not have access to the trial transcripts. The postconviction court did not address that argument.

¶ 23 Defendant does not explain how lack of access to the transcripts prevented him from raising all of his postconviction claims in his first Crim. P. 35(c) motion. Recall, in his first Crim. P. 35(c) motion, defendant was able to raise seven claims spanning twenty-two pages without access to transcripts. The lack of transcripts is not an enumerated exception under Crim. P. 35(c)(3)(VII), nor is access to the trial transcript a constitutional right. See Jurgevich v. Dist. Court , 907 P.2d 565, 567 (Colo. 1995) (stating that "[a] defendant does not have a constitutional right to a free transcript to search for errors to raise in a collateral attack"). And the federal circuits have held that lack of access to transcript is not a basis for equitable tolling. See Lloyd v. Van Natta , 296 F.3d 630, 634 (7th Cir. 2002) ("[T]he other circuits to consider this issue have held that the unavailability of a transcript does not allow equitable tolling to excuse an otherwise untimely [habeas] petition. We find these cases persuasive, and we join our sister circuits in holding that equitable tolling does not excuse [petitioner's] late filing simply because he was unable to obtain a complete trial transcript before he filed his [habeas] petition.") (citations omitted).

¶ 24 In the end, we decline defendant's invitation to read into the rule exceptions that it does not contain. As written, Crim. P. 35(c)(3)(VII) bars defendant's new postconviction claims raised for the first time in his second Crim. P. 35(c) motion.

V. Conclusion

¶ 25 The order is affirmed.

JUDGE HARRIS and JUDGE WELLING concur.