v. Lujan

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 12, 2018

2018COA95

No. 15CA1176, People v. Lujan — Constitutional Law — Sixth
Amendment — Speedy and Public Trial

A division of the court of appeals considers whether the

closure of a courtroom — excluding the public, the parties, and

counsel — to reread instructions to the jury during deliberation

violates a defendant’s Sixth Amendment right to a public trial. The

division concludes that the defendant’s right to a public trial was

violated and that the violation was not trivial because two of the

purposes of the right to a public trial — (1) “to ensure a fair trial”

and (2) “to remind the prosecutor and judge of their responsibility

to the accused and the importance of their functions” — were

compromised by the empty courtroom. Peterson v. Williams, 85

F.3d 39, 43 (2d Cir. 1996). Because the violation of a criminal
defendant’s right to a public trial constitutes structural error, the

division reverses and remands for a new trial.
COLORADO COURT OF APPEALS 2018COA95

Court of Appeals No. 15CA1176
Boulder County District Court No. 13CR1829
Honorable Andrew R. Macdonald, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Abel Lujan,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE RICHMAN
Webb and Fox, JJ., concur

Announced July 12, 2018

Cynthia H. Coffman, Attorney General, Brittany Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Haddon, Morgan and Foreman, P.C., Adam Mueller, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Abel Lujan, appeals the judgment of conviction

entered on a jury verdict finding him guilty of second degree

murder. Because the trial court erroneously ordered the courtroom

to be completely cleared when it reread instructions to the jury

during deliberations, over defendant’s objection, we must reverse

and remand for a new trial.

I. Background

¶2 The victim, defendant’s live-in girlfriend, was beaten,

strangled, and left on the ground outside a friend’s apartment in

1999. In 2013, the People charged defendant with first degree

murder. On the first day of trial, defendant conceded that he was

responsible for the victim’s death, but he argued that he was guilty

only of reckless manslaughter.

¶3 Over defendant’s objection that the evidence violated CRE

404(b), defendant’s ex-wife and a former girlfriend testified about

defendant’s behavior toward them, including that he had hit and

tried to strangle or suffocate them. For each witness’s testimony,

the trial court gave a contemporaneous limiting instruction.

However, at the close of evidence, the jury was instructed only

generally that “[t]he Court admitted certain evidence for a limited

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 purpose. You are instructed that you cannot consider that evidence

except for the limited purpose I told you about when it was

admitted.”

¶4 During deliberations, the jury submitted two questions to the

trial court, one of which said: “Please write down the statement for

the limited use statement [sic] on the testimonies of [defendant’s ex-

wife and former girlfriend].” Defense counsel objected to sending a

written version of the contemporaneous instructions to the jury

room if it did not contain additional language explicitly stating that

the jury could not use the testimonies as evidence of propensity —

language that the trial court had already rejected. The prosecutor

suggested that the jury be brought back to the courtroom, where

the judge could read the written version of the contemporaneous

instructions. After a lengthy discussion, the court gave defense

counsel a choice between (1) sending the jury a written version of

the limiting instructions given contemporaneously with the

testimony and (2) clearing the courtroom while it reread the

contemporaneous limiting instructions aloud to the jury. Counsel

indicated that he preferred reading the instructions to the jury, but

he objected to excluding everyone from the courtroom. The court

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 responded that it could “never bring the jury out in front of the

parties” during deliberations and that counsel did not have to worry

about it because the proceeding would be on the record.

¶5 Ultimately, defense counsel asked the court to read the

instructions aloud and to note that “we are not in the courtroom,

. . . and we are allowed to be.” Counsel also requested that the jury

be told why the parties were not present, and the judge responded

“of course.”

¶6 With the courtroom empty except for the jury, the bailiff, and

the court reporter, the trial court said, “All right. Good morning,

ladies and gentlemen. I’m going to read to you the instructions I

read contemporaneous[ly] with the testimony of [defendant’s ex-

girlfriend and his ex-wife].” Then the court reread the instructions

directing that the testimony from each witness could be considered

only to show motive, intent, or common plan. Finally, it said, “That

— those are the instructions. Okay. So thank you.”

¶7 The jury found defendant guilty of second degree (knowing)

murder.

¶8 On appeal, defendant contends that this conviction must be

reversed because (1) closure of the courtroom to read limiting

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 instructions violated his right to a public trial and his right to be

present and (2) the trial court made three erroneous evidentiary

decisions. We agree with defendant’s contention regarding a public

trial and, because we conclude that the error is structural, we do

not address his contention that his right to be present was violated,

as a violation of that right is not structural error. However, we

address his evidentiary contentions because they might arise on

remand.

II. Public Trial

¶9 A criminal defendant’s right to a public trial is guaranteed by

both the United States and Colorado Constitutions. U.S. Const.

amends. VI, XIV; Colo. Const. art. II, § 16. When the trial court

erroneously deprives a defendant of this right, the error is

structural and “require[s] automatic reversal without individualized

analysis of how the error impairs the reliability of the judgment of

conviction.” Hagos v. People, 2012 CO 63, ¶ 10; see Stackhouse v.

People, 2015 CO 48, ¶ 7. A violation of the right to a public trial is

not amenable to a harmless error analysis because “the effects of

the error are simply too hard to measure.” Weaver v.

Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1908 (2017); see

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 Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (noting that it would

be impossible to demonstrate the prejudicial effect of the violation of

a criminal defendant’s right to a public trial).

¶ 10 A trial court’s decision to completely close a criminal

courtroom will not violate a defendant’s public trial right if four

requirements, articulated in Waller, are met: (1) “the party seeking

to close the [proceeding] must advance an overriding interest that is

likely to be prejudiced”; (2) “the closure must be no broader than

necessary to protect that interest”; (3) “the trial court must consider

reasonable alternatives to closing the proceeding”; and (4) “[the trial

court] must make findings adequate to support the closure.” 467

U.S. at 48; accord People v. Hassen, 2015 CO 49, ¶ 9.

¶ 11 Here, the trial court decided sua sponte to exclude all but the

jury, the bailiff, the reporter, and itself from the courtroom,

advancing the bare assertion that it could never bring the jury in

front of parties during deliberations. The court’s statement is

contrary to proper court practices that place the jury and parties

together during deliberations, such as the reading of an Allen

instruction or the presentation of trial exhibits. See People v.

Payne, 2014 COA 81, ¶20 (“[D]efendant had a constitutional right to

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 be present while the trial court read the modified Allen instruction

in open court . . . .”); see also DeBella v. People, 233 P.3d 664, 669

(Colo. 2010) (holding that a court may require that a video be

viewed in open court rather than give a jury unfettered access

during deliberations). And the court gave no reason for excluding

the public.

¶ 12 Thus, no overriding interest was articulated. The closure was

exceedingly broad. And the record reflects that, because defendant

chose to have the instruction read aloud, the court rejected the

reasonable alternative of sending written instructions to the jury,

but made no findings to justify the total closure. Under these

circumstances, the closure was not justified. See, e.g., Presley v.

Georgia, 558 U.S. 209, 216 (2010) (reversing the defendant’s

conviction because the trial court did not consider all reasonable

alternatives to closure, “and that is all this Court needs to decide”).

¶ 13 The People do not argue that the Waller elements were met.

Instead, they urge us to affirm the conviction, notwithstanding the

unjustified closure, because the exclusion was “trivial” and did not

violate defendant’s Sixth Amendment right. See Waller, 467 U.S. at

50 (“[T]he remedy should be appropriate to the violation.”). They

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 argue that no Sixth Amendment violation occurred because the

closure was brief and transcribed, and the court only repeated the

instructions presented during the public portion of the trial.

¶ 14 The triviality standard, first recognized in the Second Circuit,

follows the rationale that not every deprivation in a structural

category constitutes a constitutional violation or requires reversal of

the conviction. See Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir.

2009). When the purposes of the right to a public trial — (1) “to

ensure a fair trial”; (2) “to remind the prosecutor and judge of their

responsibility to the accused and the importance of their functions”;

(3) “to encourage witnesses to come forward”; and (4) “to discourage

perjury” — are not compromised, no Sixth Amendment violation

occurs. Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996).

¶ 15 The triviality standard has not been adopted in Colorado,

although our supreme court has considered it. See Hassen, ¶¶ 15,

17. However, the Tenth Circuit has recognized that a “brief and

inadvertent closing of . . . the courtroom . . . [does] not violate the

Sixth Amendment.” United States v. Al-Smadi, 15 F.3d 153, 154-55

(10th Cir. 1994). This position appears to be the majority view

among courts that have considered this standard. See Kristin

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 Saetveit, Note, Close Calls: Defining Courtroom Closures Under the

Sixth Amendment, 68 Stan. L. Rev. 897, 916 (2016).

¶ 16 We need not pick a side because we conclude that even if we

were to adopt the triviality standard, the closure here was not

trivial. Though the closure was brief, it completely excluded the

public, the attorneys, and defendant from an interaction between

the court and the jury concerning a matter of law. The closure thus

compromised two purposes of the right to a public trial — because

no member of the public was present, the public could not (1) see

that the defendant was tried fairly, or (2) “remind the . . . [court] of

[its] responsibility to the accused and the importance of [its]

function[].” Peterson, 85 F.3d at 43. To ensure a fair trial, the

transparency of the proceedings must extend not only to the words

spoken, but also to the presence and the demeanor of the

participants. When the courtroom is closed, their demeanor is

hidden.

¶ 17 The People’s cited cases, in which courts found no violation of

the Sixth Amendment because closures of the courtroom were

inadvertent, partial, or necessitated by administrative concerns, do

not persuade us that the courtroom closure here could be

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 considered trivial. See United States v. Perry, 479 F.3d 885, 890

(D.C. Cir. 2007) (partial); United States v. Ivester, 316 F.3d 955, 960

(9th Cir. 2003) (administrative); Braun v. Powell, 227 F.3d 908, 918

(7th Cir. 2000) (partial); Al-Smadi, 15 F.3d at 154 (inadvertent);

State v. Lindsey, 632 N.W.2d 652, 660 (Minn. 2001) (partial). None

of these three characteristics was present here.

¶ 18 The People suggest that, if we do not affirm, we should remand

the case to the trial court for a hearing on the Waller elements. But

the record clearly demonstrates that the elements were not met,

and we decline to waste judicial resources on remand. See Hassen,

¶ 12; People in Interest of G.B., 2018 COA 77, ¶ 52.

¶ 19 Because the closure of the courtroom was total, intentional,

and unjustified, we conclude that defendant’s Sixth Amendment

right was violated. Thus, we are compelled to reverse his conviction

and remand the case for a new trial. See Weaver, 582 U.S. at ___,

137 S. Ct. at 1910 (“[I]n the case of a structural error where there is

an objection at trial and the issue is raised on direct appeal, the

defendant generally is entitled to ‘automatic reversal’ regardless of

the error’s actual ‘effect on the outcome.’” (quoting Neder v. United

States, 527 U.S. 1, 7 (1999))).

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 III. Evidentiary Rulings

¶ 20 Defendant also contends that the court committed three

evidentiary errors. Because these issues may arise on remand, we

briefly address them.

¶ 21 “A trial court has broad discretion in ruling on the

admissibility of evidence.” People v. Beilke, 232 P.3d 146, 149

(Colo. App. 2009). A trial court thus abuses its discretion only

when its evidentiary ruling is manifestly arbitrary, unreasonable,

unfair, or is based on a misunderstanding or misapplication of the

law. People v. Thompson, 2017 COA 56, ¶ 91.

¶ 22 Evidence is relevant if it has any tendency to make the

existence of a fact of consequence more or less probable. CRE 401.

All relevant evidence is admissible, except that proscribed by rule or

law. CRE 402. CRE 403 permits exclusion of relevant evidence if

its probative value is substantially outweighed by the danger of

unfair prejudice, but because Rule 403 strongly favors

admissibility, we afford evidence “the maximum probative value

attributable by a reasonable fact finder and the minimum unfair

prejudice to be reasonably expected.” People v. Gibbens, 905 P.2d

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 604, 607 (Colo. 1995); People v. James, 117 P.3d 91, 94 (Colo. App.

2004).

A. Exclusion of Evidence that Defendant Had Been Upset

¶ 23 A law enforcement officer testified for the People that in all of

their interactions, defendant had never seemed upset or remorseful

about the victim’s death. Defendant sought to elicit rebuttal

testimony, from a different officer, that defendant had been upset

on at least one occasion and “[t]here were times when he was

crying.” The People argued, and the court agreed, that the

testimony should be excluded as self-serving hearsay.

¶ 24 Defendant contends that because the prosecution opened the

door to his demeanor, and the testimony did not involve hearsay, he

was entitled to elicit this testimony as part of his right to present a

defense. We agree that exclusion of the testimony was an abuse of

discretion because the court misapplied the law in concluding that

the evidence was hearsay.

¶ 25 Hearsay is an out-of-court statement offered to prove the truth

of the matter asserted. CRE 801(c). Nonverbal conduct may

constitute hearsay if the conduct is intended to be communicative.

CRE 801(a)(2). But a person’s demeanor is generally not hearsay.

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 See Markgraf v. State, 12 P.3d 197, 199 (Alaska Ct. App. 2000)

(holding that a person’s apparent mental state is not routinely

considered hearsay; collecting cases); see also People v. Acosta,

2014 COA 82, ¶ 33 (“In Colorado, it is well established that a lay

witness may give a summary opinion of another person’s

behavior . . . or state of mind” if the witness personally observed the

person’s behavior.).

B. Admission of Victim’s Statements Under CRE 807

¶ 26 Defendant contends that the court abused its discretion in

admitting statements made by the victim to two witnesses prior to

her death under the residual hearsay exception, which permits

admission of hearsay evidence with circumstantial guarantees of

trustworthiness. See CRE 807. He specifically argues that the

prosecution did not meet its burden to prove the trustworthiness of

the victim’s statements that (1) she “was being abused” by

“[defendant],” in response to a friend’s question about her black eye

and marks on her arms; and (2) defendant “had tried strangling

her,” in response to another friend’s question about marks on her

neck.

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¶ 27 The trial court found sufficient indicia of reliability for the

victim’s statements, which were testified to by friends who had

personally witnessed defendant physically or verbally abusing the

victim. The court found that the statements were nontestimonial,

not motivated by a police investigation, and prompted by questions

based on personal observations of the victim’s bodily injuries. It

further found that one of the witnesses “was able to vividly recall

the details of the abuse.” The court did not abuse its discretion in

finding that these statements were sufficiently trustworthy. See

People v. Jensen, 55 P.3d 135, 139 (Colo. App. 2001) (holding that

trustworthiness could be determined from the nature and character

of the statements, the relationship of the parties, the probable

motivation of the declarant in making the statements, and the

circumstances under which the statements were made).

C. Admission of Other Acts Toward Intimate Partners

¶ 28 After a pretrial hearing, the trial court ruled that two witnesses

— defendant’s ex-wife and his former girlfriend — could testify

about defendant’s specific acts while in their individual

relationships.

¶ 29 Specifically, defendant’s ex-wife would testify that

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  in 1991, defendant assaulted her and told police officers

that “if anybody here shows up dead, I’ll be the one who

did it”;

 he hit her on the head and the stomach on October 9,

1993; and

 he threw her on the floor and punched her in the face on

December 17, 1996.

These allegations were documented in contemporaneous police

reports.

¶ 30 Defendant’s ex-girlfriend would testify that

 defendant used a bicycle wheel to break her car window

on August 23, 2005;

 he put his hands around her neck and covered her

mouth in September 2005; and

 he told her about a past girlfriend who “ended up dead.”

The broken car window was documented in a contemporaneous

police report, and the ex-girlfriend reported the other incidents to

police when she was interviewed in 2013.

¶ 31 Section 18-6-801.5(3), C.R.S. 2017, provides that evidence of

other transactions is admissible in domestic violence cases like this
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 one “to show a common plan, scheme, design, identity, modus

operandi, motive, or guilty knowledge or for some other purpose.”

Upon an offer of proof, the court may admit such evidence after

considering “whether the probative value of the evidence . . . is

substantially outweighed by the danger of unfair prejudice to the

defendant, confusion of the issues, or misleading of the jury . . . .”

§ 18-6-801.5(4).

¶ 32 The trial court held a hearing and issued a detailed order

regarding the admissibility of this other act evidence. The court

considered section 18-6-801.5 and CRE 404(b) and found that

(1) defendant had committed the acts and (2) the evidence was

related to a material fact with logical relevance independent of the

prohibited inference of defendant’s bad character. The court

concluded that the probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice, and was

admissible. At trial, it provided an appropriate instruction limiting

consideration of the evidence to only defendant’s motive, his intent,

and whether he acted in accordance with a common plan. The

record supports the court’s findings and conclusions.

IV. Conclusion

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¶ 33 We reverse defendant’s conviction and remand the case for a

new trial.

JUDGE WEBB and JUDGE FOX concur.

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