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ADVANCE SHEET HEADNOTE
April 8, 2019
2019 CO 21
No. 15SC268, Ray v. People—Jury Instructions—Self-Defense—Burden of Proof—
Testimonial Evidence—Jury Deliberations—Abuse of Discretion—Harmless Error.
Ray petitioned for review of the court of appeals’ judgment affirming his
convictions for attempted first degree murder, first degree assault, and accessory to first
degree murder. The supreme court holds that because the language of a
self-defense-related instruction did not permit the jury to reconsider the court’s
determination, based on the evidence at trial, that the affirmative defense of person was
available to Ray, and because the jury was properly instructed concerning the People’s
burden to disprove that, and any, affirmative defense, the district court did not err in
instructing the jury as to his assertion that he acted in defense of himself and a third
person. The supreme court also holds that although error resulted from the district
court’s reliance on later-overruled case law permitting the jury to have unrestricted access
to a witness recorded interview admitted as an exhibit at trial, when the content of that
exhibit is compared with the other evidence admitted at trial, the error was harmless.
The judgment of the court of appeals is therefore affirmed.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 21
Supreme Court Case No. 15SC268
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 07CA561
Petitioner:
Robert Keith Ray,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
April 8, 2019
Attorneys for Petitioner:
Elisabeth Hunt White
Boulder, Colorado
Johnson & Klein, PLLC
Gail K. Johnson
Eric K. Klein
Boulder, Colorado
The Noble Law Firm, LLC
Antony M. Noble
Lakewood, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
John T. Lee, Senior Assistant Attorney General
Denver, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court.
JUSTICE GABRIEL concurs in part and dissents in part, and JUSTICE HART joins in
the concurrence in part and dissent in part.
JUSTICE SAMOUR does not participate.
2
¶1 Ray petitioned for review of the court of appeals’ judgment affirming his
convictions for attempted first degree murder, first degree assault, and accessory to first
degree murder. As pertinent to the issues before the supreme court, the intermediate
appellate court rejected Ray’s claim that one of the self-defense-related instructions given
by the district court implicitly shifted the burden of proof to him by improperly imposing
conditions on the availability of that affirmative defense; and in the absence of any record
indication that the jury later watched a recorded witness interview admitted as an exhibit
at trial, the appellate court declined to address his claim that the district court abused its
discretion in allowing the jury unrestricted access to that recording.
¶2 Because the language of the instruction in question did not permit the jury to
reconsider the court’s determination, based on the evidence at trial, that the affirmative
defense of person was available to Ray, and because the jury was properly instructed
concerning the People’s burden to disprove that, and any, affirmative defense, the district
court did not err in instructing the jury as to his assertion that he acted in defense of
himself and a third person. Although error resulted from the district court’s reliance on
later-overruled case law permitting the jury to have unrestricted access to the exhibit in
question, when the content of that exhibit is compared with the other evidence admitted
at trial, the error was harmless. The judgment of the court of appeals is therefore
affirmed.
I.
¶3 Robert Ray was charged with first degree murder and accessory to murder in
connection with the shooting death of Gregory Vann, as well as attempted murder for
3
trying to shoot Jeremy Green, and both first degree attempted murder and first degree
assault for each of the separate shootings of Elvin Bell and Javad Marshall-Fields. He was
acquitted of the murder of Vann and the attempted murder of Green but was convicted
of being an accessory to the murder of Vann and of committing both attempted first
degree murder and first degree assault for the shootings of Bell and Marshall-Fields. Ray
was sentenced concurrently for his dual convictions of attempted murder and assault
with regard to Bell and his dual convictions of attempted murder and assault with regard
to Marshall-Fields, but consecutively for the crimes he committed against Bell, the crimes
he committed against Marshall-Fields, and the crime he committed relative to the murder
of Vann, resulting in a total sentence to the custody of the department of corrections for
108 years.1
¶4 The charges all arose from events occurring at a melee at Lowry Park on July 4,
2004, and its aftermath. The evidence at trial included numerous first-hand witness
accounts, a home video taken by one of the attendees, a recording of a police interview
of Green made shortly after the events in question, and photographic, real, and
testimonial evidence concerning the wounds of Bell and Marshall-Fields and the
1 In a later trial not at issue here, the defendant was convicted as a complicitor for, among
other crimes, the subsequent murders of Marshall-Fields and his fiancée. The attempted
first degree murder convictions in the present case were used as sentence aggravators in
the defendant’s death sentence that resulted from the later trial. Evidence relating to
these murders was not introduced at trial in the present case.
4
weapons used by Ray and Sir Mario Owens, Ray’s very close friend. The defendant also
testified on his own behalf.
¶5 Although there was much conflicting testimony, it was undisputed that the Lowry
Park event, attended by as many as 200 people, was organized by Vann and
Marshall-Fields as a musical event and barbeque, which was free and open to the public.
Early in the evening, the defendant was confronted by Marshall-Fields about his behavior
at the event, as a result of which interaction the defendant’s wife, who was also in
attendance with his sister, called Owens to come and support the defendant. Sometime
later, about 9:00 p.m., as the wife and sister were attempting to drive away, they became
embroiled in a confrontation with a crowd of people, which was joined by the defendant
and Owens. A home video showed both men and women involved in the struggle. There
was testimony that Vann was attempting to break up the fight, and Green expressly
stated in the interview that he confronted the defendant about his aggressive behavior,
head-butted him in the face, and heard him, at several points during the confrontation,
threaten to kill everybody.
¶6 Shortly thereafter, the defendant admittedly lifted his shirt as he walked forward
toward the crowd, revealing a handgun in his waistband, and the defendant’s wife
identified another man seen in the home video, similarly raising his shirt, as Owens. In
the confrontation that ensued, Owens shot Vann in the chest at close range and once more
after he fell. As Owens attempted to escape to the car being driven by the defendant, he
was pursued by Bell and Marshall-Fields, both of whom were then shot several times.
Although both men indicated that they initially thought they had been shot by Owens,
5
being the only person they had seen with a gun, another witness testified that he saw the
defendant calmly come around the car, put his gun under his left arm, and shoot both
men repeatedly.
¶7 One nine-millimeter and two .380 caliber shell casings were found at the scene,
and two .380 caliber bullets were recovered from the body of Vann, who was clearly shot
by Owens. One bullet fragment that was later removed from the chest wall of Bell, whom
the defendant admitted he shot, was identified as having splintered from a
nine-millimeter bullet. Both of Marshall-Fields’s wounds had clear entrance and exit
wounds, leaving no identifiable bullets or bullet fragments. The defendant’s wife
testified that the defendant’s stepfather disposed of both guns. No witness testified to
seeing anyone other than Owens or the defendant with a weapon.
¶8 Although the defendant admitted that in the days following the shooting, he took
active steps to help Owens evade capture, he also testified that he did not shoot
Marshall-Fields and that although he did shoot Bell, he did so only in defense of himself
and Owens. The defendant confirmed that he had a nine-millimeter semiautomatic
handgun in his waistband, but he testified that he showed it only in an attempt to force
the crowd back so that he could search for a chain he lost during the struggle. He also
testified that he never saw Owens with a gun that night, but that he did see blood on
Owens’s shirt when he was being beaten by Bell and therefore believed Bell had shot
Owens, causing the defendant to defensively shoot Bell. Finally, with regard to Green’s
statement that the defendant repeatedly threatened to kill everybody, the defendant
testified simply that he did not recall doing so.
6
¶9 Following affirmance of his convictions by the court of appeals, the defendant
petitioned this court for further review on a host of issues. We issued our writ of
certiorari only with regard to the questions whether the district court’s instructions
erroneously shifted the burden of proof relative to the defendant’s assertion of
self-defense and whether the jury’s having had unfettered access to the Green videotaped
interview violated the defendant’s federal and state constitutional rights to due process
and a fair trial.
II.
¶10 The jury was instructed on the defendant’s asserted affirmative defense of acting
in defense of himself or a third person in four separate instructions. In addition to an
instruction generally notifying the jury of and explaining the prosecution’s burden of
proof with regard to the elements of each offense, which included committing the other
elements without the affirmative defense, the district court instructed the jury, in a
separate instruction, that the evidence had raised an affirmative defense; that the
prosecution had the burden to prove the defendant’s guilt beyond a reasonable doubt as
to that affirmative defense as well as the other elements of the crime charged; and that if
after considering the evidence of the affirmative defense with the other evidence in the
case the jury was not convinced beyond a reasonable doubt as to the defendant’s guilt, it
would be required to return a not guilty verdict. In a third instruction, the jury was then
instructed as to the circumstances under which the defendant’s use of physical force and
deadly physical force would be justified in defense of himself or another person,
including the requirement that the defendant must have had a reasonable belief that he
7
or another person was in imminent danger of being killed or of receiving great bodily
injury.
¶11 In the instruction challenged by the defendant here, numbered 25, the jury was
further instructed concerning the question whether an actual belief by the defendant, if
the jury were to find him to have had one, could be considered to have been supported
by reasonable grounds.2 Specifically, the defendant contends that by instructing the jury
in the language, “[i]n deciding whether or not the defendant had reasonable grounds for
believing,” and further that the jury “should determine whether or not he acted as a
reasonable and prudent person,” the court implicitly imposed conditions on even the
“availability” of the defense, effectively shifting the burden to him to first prove these
conditions before being entitled to have the prosecution disprove the defense beyond a
reasonable doubt. Unlike our precedent upon which the defendant relies, Instruction No.
25 does not mention anything about the “availability” of the defense, much less suggest
2 In deciding whether or not the defendant had reasonable grounds for
believing that he or another was in imminent danger of being killed or of
receiving serious bodily injury, or that he or another was in imminent
danger from the use of unlawful physical force, you should determine
whether or not he acted as a reasonable and prudent person would have
acted under like circumstances. In determining this, you should consider
the totality of the circumstances, including the number of people
reasonably appearing to be a threat.
It is not enough that the defendant believed himself or another to be in
danger, unless the facts and circumstances shown by the evidence and
known by him at the time, or by him then believed to be true, are such that
you can say that as a reasonable person he had grounds for that belief.
8
that the defendant bore a burden to prove preconditions to its availability; rather, on its
face, the instruction purports to further explain the meaning of a statutory concept
included in the defense itself.
¶12 It is now well-settled that the issue of justification for intentionally or knowingly
killing another person in defense of oneself or a third person is an affirmative defense, as
to which the trial court is obliged to instruct the jury whenever the court determines that
the defendant has presented some credible evidence on the issue and the defendant
requests that the court do so. § 18-1-407(1), C.R.S. (2018); § 18-1-704(1), (2)(a), C.R.S.
(2018); § 18-1-710, C.R.S. (2018); Montoya v. People, 2017 CO 40, ¶¶ 26–29, 394 P.3d 676,
686–88 (explaining People v. Pickering, 276 P.3d 553, 555 (Colo. 2011) (stating that
self-defense is an affirmative defense with respect to crimes requiring intent, knowledge,
or willfulness)); People v. Speer, 255 P.3d 1115, 1119 (Colo. 2011). Once the defense has
been adequately raised and presented by the court to the jury, the guilt of the defendant
must be established by the prosecution beyond a reasonable doubt as to that affirmative
defense, just as to the other elements of the offense against which the defendant is
defending. § 18-1-407(2); Pickering, 276 P.3d at 555.
¶13 On several occasions in the past, we have drawn a clear distinction between the
prosecution’s burden to disprove an affirmative defense to the jury’s satisfaction, beyond
a reasonable doubt, once it has been placed at issue, and the question whether the defense
has been placed at issue in the first place, finding in those cases that an instruction
permitting the jury to redetermine the question of a defense’s availability or applicability
effectively permitted the jury to absolve the prosecution of its burden to disprove the
9
defense and therefore its duty to prove all of the elements of the offense. See People v.
Janes, 982 P.2d 300, 303–04 (Colo. 1999); Lybarger v. People, 807 P.2d 570, 574, 579, 581–83
(Colo. 1991). In Lybarger, where the jury was instructed both that it should find the
defendant guilty if the affirmative defense in question was not “available” to him and
that the defense would not be “available” to him if the People proved specified conditions
virtually identical with the elements of the crime with which he was charged, we found
that taken together these instructions not only erroneously relegated to the jury the
function of determining the availability or non-availability of the affirmative defense but
also effectively eliminated the prosecution’s burden of proof with respect to that defense.
807 P.2d at 574, 581–82. Again, in Janes, which involved the virtually unique situation of
the so-called “make-my-day” defense, which can operate as either a pre-trial immunity,
which must be proved by the defendant, or an affirmative defense at trial, to be disproved
by the prosecution, we held that instructing the jury in the language of the immunity—
that the affirmative defense would not be “available” unless the jury first found the victim
to have made a knowing unlawful entry—similarly relieved the prosecution of any
burden to disprove the defense, until after proof of a precondition only the defendant
could have an interest in proving. 982 P.2d at 303–04.
¶14 Unlike the erroneous instructions in Lybarger and Janes, Instruction No. 25 neither
stated, nor even implied, anything about the availability or applicability of the defense.
Rather, it expressly referenced, and embellished on a concept contained in, the
immediately preceding affirmative defense instruction, which itself expressly spelled out
the prosecution’s burden to disprove the defense beyond a reasonable doubt, by detailing
10
the findings necessarily included in the conditions of the defense. To the extent the
defendant suggests that the instruction’s use of the phrase “whether or not” relieved the
prosecution of its burden by implying an obligation of the jury to determine whether any
belief actually held by the defendant was or was not reasonable prior to holding the
prosecution to its burden to disprove that the defendant’s conduct was justified, there
was little chance the jury could have been misled by such a subtle and nuanced
interpretation, especially in light of its other express instructions concerning the
prosecution’s burden. The jury was expressly instructed of the prosecution’s burden to
disprove the affirmative defense multiple times, in substantially the language of the
statutes and pattern instructions, including in the very affirmative defense instruction
whose terms were the subject of explanation in Instruction No. 25.
III.
¶15 Despite being refreshed with the transcript of the recording of his interview with
the police, Green repeatedly asserted a lack of memory and therefore failed to answer a
majority of the prosecutor’s questions concerning the Lowry Park shootings. As a result,
the videotaped interview was admitted into evidence as a prior inconsistent statement.
Over the defendant’s objection, the district court ruled that recent changes to the civil
procedural rules had eliminated any limitation on exhibits being taken into the jury room
during deliberations, and it ordered that the video and equipment to view it be made
available to the jury. Although the cases of Frasco v. People, 165 P.3d 701 (Colo. 2007), and
DeBella v. People, 233 P.3d 664 (Colo. 2010), had not yet been announced by this court, and
the district court could therefore not have been aware of them, our rulings in those cases
11
expressly overruled the precedents relied on by the district court and made clear that its
ruling permitting unfettered access to Green’s out-of-court interview, without any
exercise of discretion on its part, was error.3
¶16 However, even a properly objected-to trial error will be disregarded as harmless
if that error did not substantially influence the verdict or affect the fairness of the trial
proceedings. James v. People, 2018 CO 72, ¶ 19, 426 P.3d 336, 341; see also Crim. P. 52(a).
While the strength of the evidence supporting a verdict is often an important
consideration in assessing harmlessness, so too is the specific nature of the error in
question and the nature of the prejudice or risk of prejudice associated with that error.
People v. Roman, 2017 CO 70, ¶ 14, 398 P.3d 134, 138; Crider v. People, 186 P.3d 39, 43 (Colo.
2008). As we made clear in Frasco, the reason trial courts have an obligation, at least
where prompted to do so by a party, to exercise discretion in permitting testimonial
exhibits to be viewed by deliberating juries is to guard against their being given undue
weight or emphasis, much as they have an obligation with regard to jury requests to
review transcripts of specific trial testimony. 165 P.3d at 703–05 (analogizing testimonial
exhibits to the trial transcripts at issue in Settle v. People, 504 P.2d 680 (Colo. 1972)); see also
Martinez v. People, 2017 CO 36, ¶ 31, 393 P.3d 557, 563 (“[J]urors’ unlimited access in the
3 To be clear, the error occurred when the court ruled, without considering the risk of
undue prejudice, and consequently without exercising any discretion, that the jury must
be allowed unfettered access to the exhibit. See DeBella v. People, 233 P.3d 664, 668 (Colo.
2010). Therefore, the question whether, or how many times, the jury watched the
recorded interview could at most be relevant to the harmfulness of that erroneous ruling.
12
jury room to only one side of the story heightened the risk that they would give that side
undue weight . . . .”). While we have never circumscribed the trial court’s discretion in
this regard by mandating time limitations on jury access or requiring particular limiting
instructions, see Frasco, 165 P.3d at 704, we have consistently emphasized that the trial
court must exercise its discretion in allowing such exhibits into the jury room, with the
ultimate objective of assessing whether using the exhibit in question will aid the jury in
its proper consideration of the case, and even if so, whether a party will nevertheless be
unfairly prejudiced by the jury’s use of it, id. at 704–05; see also DeBella, 233 P.3d at 668.
¶17 Because testimonial exhibits will, by definition, always have been admitted into
evidence, unless they were erroneously admitted in the first place, allowing them into the
jury room during deliberations will never risk exposure of the jury to evidence not
properly before it. Nevertheless, the discretionary decision whether to permit the jury to
view testimonial exhibits again, and perhaps repeatedly, is not dissimilar from a trial
court’s discretionary determination with respect to the admissibility of cumulative
testimony in the first instance: whether the incremental probative value of that
cumulative testimony is substantially outweighed by the unfairly prejudicial impact of
its repetition. See People v. Saiz, 32 P.3d 441, 446, 448 (Colo. 2001) (explaining that CRE
403 requires trial courts to balance the incremental probative value of evidence relative
to other evidence in the case against the rule’s policy reasons for exclusion of, among
other things, cumulative evidence). In each case, the question for the court is whether the
added jury exposure, in light of all the other evidence before it, will be more helpful or
more harmful to its deliberations, see Frasco, 165 P.3d at 704–05; Saiz, 32 P.3d at 446, and
13
because this discretionary choice involves a balance of helpfulness and harmfulness in
the first instance, the question whether that balance was made erroneously or amounted
to an abuse of discretion will necessarily be closely related to the question whether any
error in admission, if it occurred, was harmless. With regard to the question of
admissibility in the first instance, we have long recognized that the decision is a highly
discretionary one, subject to review on appeal only on the assumption of maximum
probative value and minimum unfair prejudice. People v. Gibbens, 905 P.2d 604, 607 (Colo.
1995).
¶18 Accordingly, we have found the failure of trial courts to adequately control jury
access to testimonial exhibits to be most problematic where the jury’s ultimate
determination would necessarily turn on its assessment of the credibility of witnesses, as
distinguished from the force of real, or demonstrative, evidence. This has especially been
the case where resolution of the issue in question must turn on the assessment of a witness
account of the commission of the crime, by the only person other than the defendant to
have purportedly witnessed the crime denied by him, which account is both
contradictory of the principal defense and the only testimonial account the jury is
permitted to repeatedly view. People v. Jefferson, 2017 CO 35, ¶ 59, 393 P.3d 493, 503–04;
DeBella, 233 P.3d at 668–69. In DeBella, where the credibility of the child sexual-assault
victim was severely challenged on cross-examination and the child’s lack of credibility
was the principal theory of the defense, we therefore found reversible the decision to
allow unlimited jury access to his hour-long, out-of-court interview, which—being the
only complete recounting of the assaults—we characterized as the “linchpin” of the
14
prosecution’s case. 233 P.3d at 668–69. Similarly, in Jefferson, where the principal theory
of the defense was that the child sexual assault allegations were not credible, and having
introduced no physical evidence of the crime, the prosecution’s case once again rested on
the alleged victim’s often inconsistent allegations, we found reversible the trial court’s
decision to allow unlimited jury access to a DVD of the child sexual-assault victim’s
out-of-court interview. ¶¶ 59–60, 393 P.3d at 503–04; cf. Martinez, ¶¶ 30–33, 393 P.3d at
562–63 (distinguishing DeBella and Jefferson largely on grounds that DVDs of the victim
interviews in Martinez did not similarly serve as linchpin of prosecution’s case, where
defendant did not base his defense on inconsistencies between victims’ in- and
out-of-court accounts and where victims’ in-court testimony was sufficiently detailed
that exhibits were not needed to fill gaps in that testimony).
¶19 Unlike the testimonial exhibits at issue in DeBella and Jefferson, the videotape of
Green’s interview made shortly after the shootings in this case was not inconsistent with
anything to which he testified at trial and did not directly contradict any testimony of the
defendant concerning the pertinent events. The exhibit was admitted on the basis of
Green’s failure to recall, a ruling not before this court, rather than any contradiction of
his testimony at trial. And when confronted with Green’s statement in the exhibit to the
effect that he threatened to kill everyone, the defendant did not dispute making those
statements but testified merely that he did not recall doing so.
¶20 Perhaps even more importantly, however, unlike in DeBella and Jefferson, the
defendant’s guilt in this case did not turn on the credibility of conflicting testimony of the
principals, unsupported by corroborating physical evidence or the testimony of other
15
disinterested witnesses. With regard to Bell, there was never any dispute that the
defendant intentionally shot him at close range with a nine-millimeter semiautomatic
handgun. The defendant merely disputed the number of shots fired and asserted that he
shot Bell in defense of himself and Owens, a matter as to which Green’s out-of-court
statement that the defendant earlier in the evening threatened to kill everyone could have
had but peripheral relevance. With regard to that defense, the earlier, universal threat
against everyone present at the event could at most suggest that the defendant had
already formed an intent to kill Bell, without regard to any imminent threat from him. In
stark contrast to this generalized threat, allegedly made in anger and in the midst of a
confrontation against a number of people, however, the direct and primary evidence of
the defendant’s intent to kill came from the shooting itself and its surrounding
circumstances, including the defendant’s preparatory threatening gesture to the crowd,
the fact of his shooting Bell multiple times at close range, the relatively weak evidence
that he had reasonable grounds to believe he or Owens was being threatened with deadly
force, and, most particularly, eye-witness testimony that he concealed his gun under his
arm and calmly shot both Bell and Marshall-Fields during their struggle with Owens. See
People v. Dist. Court, 779 P.2d 385, 388 (Colo. 1989) (stating that evidence of intent may
include “the use of a deadly weapon, the manner in which it was used, and the existence
of hostility . . . between the accused and the victim” and noting that “[t]he fact finder may
infer an intent to cause the natural and probable consequences of unlawful voluntary
acts”); see also People v. Opana, 2017 CO 56, ¶ 17, 395 P.3d 757, 762 (stating that the
intended, natural, and probable consequence of the defendant admittedly shooting the
16
victim at close range was death). In consideration of this other and much more direct and
powerful evidence that the defendant was not acting in self-defense, there is little
likelihood that having the opportunity to see Green’s pre-recorded statement more than
once had a substantial impact on the jury’s verdict as to Bell. See James, ¶ 19, 426 P.3d at
341.
¶21 With respect to the shooting of Marshall-Fields, in the absence of conclusive
evidence that his wounds were inflicted with the defendant’s gun, the defendant denied
any responsibility for that shooting. Nevertheless, the relevance of Green’s statements
could at most have been equally peripheral. The universal threat to kill everyone at the
event offered little motive or support for the shooting of Marshall-Fields, especially in
light of the much more direct and powerful evidence that the defendant actually did so.
Both Bell and Marshall-Fields were embroiled in a struggle with the defendant’s friend
Owens, and both were shot virtually simultaneously, with an eye-witness testifying that
he personally watched the defendant conceal his gun beneath his arm and calmly shoot
both men, one of whom the defendant admitted intentionally shooting in defense of his
friend.
¶22 Unlike those instances in which we have found reversible error in allowing
unrestricted access to testimonial exhibits, the exhibit in this case was therefore not only
not the “linchpin” of the prosecution’s case; rather, with regard to the shootings of Bell
and Marshall-Fields, the crimes of which the defendant was actually convicted, it was
neither substantially helpful nor harmful. While it may arguably have been peripherally
meaningful with regard to the charge of being complicit with Owens in the murder of
17
Vann, the charge of which the defendant was acquitted, the district court did not suggest
that it considered the exhibit meaningful even for that purpose. Indeed, in closing
argument, the prosecution relied on Green’s, “I’ll kill you all,” statements only as
evidence of the defendant’s complicity in the murder of Vann. The error in this case
resulted simply from the district court’s reliance on existing precedent to the effect that
the exhibit was to go to the jury as a matter of course, regardless of its possible impact on
the jury’s deliberations.
¶23 Under these circumstances, we can say with confidence that there was not even a
reasonable possibility that allowing the jury to view the exhibit during deliberations
adversely affected the jury’s verdict, much less that it affected a substantial right of the
defendant. See Krutsinger v. People, 219 P.3d 1054, 1058 (Colo. 2009) (making clear that the
“reasonable possibility” standard for constitutional error is a more onerous
harmless-error standard than the “substantially influence” standard for
non-constitutional error).
IV.
¶24 Because the language of the instruction in question did not permit the jury to
reconsider the court’s determination, based on the evidence at trial, that the affirmative
defense of person was available to the defendant, and because the jury was properly
instructed concerning the People’s burden to disprove that, and any, affirmative defense,
the district court did not err in instructing the jury as to the defendant’s assertion that he
acted in defense of himself and a third person. Although error resulted from the district
court’s reliance on later-overruled case law permitting the jury to have unrestricted access
18
to the exhibit in question, when the content of that exhibit is compared with the other
evidence admitted at trial, the error was harmless. The judgment of the court of appeals
is therefore affirmed.
JUSTICE GABRIEL concurs in part and dissents in part, and JUSTICE HART joins in
the concurrence in part and dissent in part.
19
JUSTICE GABRIEL, concurring in part and dissenting in part.
¶25 I agree with the majority’s conclusion that the jury instructions at issue did not
shift the burden of proof to petitioner Robert Ray. I cannot agree, however, with the
majority’s analysis of the issue relating to the jury’s access to the video of the interview
of witness Jeremy Green. Unlike the majority, I believe that this court’s decisions in
DeBella v. People, 233 P.3d 664 (Colo. 2010), and People v. Jefferson, 2017 CO 35, 393 P.3d
493, are dispositive and require reversal on this issue. Accordingly, I respectfully concur
in Part II but dissent from Part III of the majority opinion.
I. Factual Background
¶26 After the incident that led to the charges in this case, the police interviewed Green
about the events at issue. In this interview, Green repeatedly stated that Ray had shouted
to the entire crowd, “I’ll kill all you! I’ll kill everybody!” Green stated that Ray yelled
this at least six times.
¶27 When the prosecution called Green as a witness at Ray’s trial, however, he testified
that he had little memory of any part of the incident. Indeed, during his testimony, he
stated, in words or substance, “I don’t remember,” well over one hundred times.
¶28 In light of this lack of memory, the prosecution proffered, and the trial court
admitted into evidence, the video of Green’s interview. This evidence was important
because it was the only direct evidence establishing Ray’s intent to kill, which was an
essential element of numerous of the crimes for which the jury ultimately convicted Ray.
Indeed, in its closing argument, the prosecution relied heavily on the video, which the
prosecution several times noted the jury would get to see, to establish Ray’s intent. By
1
way of example, the prosecution repeatedly reminded the jury of Ray’s threat to kill
everyone and stated, “It was not an idle threat.” The prosecution further observed that
sometimes a defendant announces his intention very clearly, and it argued, based on the
Green interview, “Mr. Ray intended to kill. His announcement of that fact over and over
and over again was not playing around, was not a joke. It was not an idle boast.” The
prosecution then asked rhetorically, “Is his conscious objective[,] his goal and his desire
to kill another person that night? I’ll kill all you, I’ll kill everybody.”
¶29 At the time the court admitted the video of Green’s interview, it advised the parties
that it would allow further argument as to whether the video should be submitted to the
jury during its deliberations. The court subsequently entertained argument, and Ray’s
counsel contended that if the court was going to provide the video to the jurors, then
“there should be some restrictions because . . . the case law is pretty clear when the jury
wants to see a video . . . , that’s supposed to be done in the presence of the parties so they
cannot keep playing it back and forth, back and forth.” Counsel further asserted that the
video should only be played if the jurors asked to see it because to allow the jurors to
watch the video without restriction would highlight Green’s testimony above that of the
other witnesses.
¶30 The prosecution responded that defense counsel was incorrect about the law. In
the prosecution’s view, “any exhibit that was admitted goes back to the jury for their
unfettered access, whether it’s a statement of the defendant, whether it’s a crime scene
photograph, whether it’s a witness statement.”
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¶31 The court agreed with the prosecution, citing People v. Pahlavan, 83 P.3d 1138 (Colo.
App. 2003), and People v. Isom, 140 P.3d 100 (Colo. App. 2005). The court then ordered
that the prosecution make available a DVD of the interview and any associated
equipment to allow the jury to watch the video. The court further asked that the
prosecution provide “training” to its staff regarding the operation of the equipment and
stated that the bailiff would be permitted to go into the jury room to show the jury how
to operate the equipment, with the restriction that the jurors not discuss the case while
the bailiff was in the room. Finally, the court explained that its procedure was to leave
the equipment in a particular hallway until the jurors wanted to watch the video, at which
point they would simply need to contact the bailiff. The court provided no limitation on
when or how often the jurors could watch the video, nor did it instruct the jury not to
afford undue weight or emphasis to the video.
¶32 Notably, no party appears to dispute that a request to the bailiff for the equipment
would not have been on the record.
II. Analysis
¶33 I begin by addressing the People’s argument that Ray did not preserve the
argument that he is now making regarding the video of the Green interview, and I note
our standard of review. I then address the applicable law and apply that law to the facts
of this case.
A. Preservation and Standard of Review
¶34 The People contend that Ray did not preserve the argument regarding the video
of the Green interview that he is now making before us. In the division below, however,
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the People conceded that Ray preserved this argument, and the division so concluded. I
believe that the record fully supports the People’s prior concession and the division’s
conclusion. As noted above, the record shows that Ray made precisely the same
argument that he is making here. Accordingly, in my view, he preserved this issue for
our review.
¶35 Control over the use of exhibits during jury deliberations rests firmly within the
trial court’s discretion, and we may not substitute our own judgment for that of the trial
court. Jefferson, ¶ 25, 393 P.3d at 498. Accordingly, we will not disturb the court’s refusal
to limit the use of an exhibit unless the court’s decision was manifestly arbitrary,
unreasonable, or unfair. Id. at ¶ 25, 393 P.3d at 498–99. In affording discretion to a trial
court, however, an appellate court may not abdicate its responsibility to review the trial
court’s determinations. Id. at ¶ 25, 393 P.3d at 499. A trial court abuses its discretion
when it misapplies the law. Id.
¶36 Not every abuse of discretion, however, impairs the reliability of a conviction to a
degree that requires reversal. Id. at ¶ 26, 393 P.3d at 499. Pursuant to Crim. P. 52(a),
“[a]ny error, defect, irregularity, or variance which does not affect substantial rights” is
deemed harmless and “shall be disregarded.” Thus, when a defendant objects to and
preserves a non-constitutional trial error, the reviewing court will overturn his or her
conviction only “if the error ‘substantially influenced the verdict or affected the fairness
of the trial proceedings.’” Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119 (quoting
Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).
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B. Applicable Law
¶37 “In this jurisdiction we have long adhered to the rule that absent a specific
exclusion of some particular class of exhibits, trial courts exercise discretionary control
over jury access to trial exhibits during their deliberations.” Frasco v. People, 165 P.3d 701,
704 (Colo. 2007).
¶38 In DeBella, 233 P.3d at 665–69, and Jefferson, ¶¶ 25–62, 393 P.3d at 498–504, we
considered trial courts’ exercise of such discretionary control in cases involving jury
access to videotaped statements of child sexual assault victims. Because I believe that
these cases should control our decision here, I discuss them in some detail.
¶39 In DeBella, 233 P.3d at 665, the People charged the defendant with sexual assault
on a child and enticement. The evidence at trial included two videotaped interviews in
which the victim had described the incidents underlying the charges to a detective and
to a counselor. Id. Parts of the first videotape and all of the second were ultimately
admitted into evidence and played for the jury in open court. Id. At the close of the
evidence, the court announced its intent to provide the jury with a television and the
second videotape, thus allowing the jury unconstrained access to the second videotape
during deliberations. Id. at 665–66. The court decided not to provide the first videotape
because it had not been redacted and thus contained portions of the interview that the
court had ruled inadmissible. Id. at 666.
¶40 Defense counsel objected to the court’s plan, contending that unless the court
imposed restrictions on the jury’s access to the second videotape, the jury’s ability to
review the videotape might result in undue prejudice to the defendant. Id. The court
5
overruled this objection, relying on People v. McKinney, 80 P.3d 823, 829 (Colo. App. 2003),
rev’d, 99 P.3d 1038 (Colo. 2004), in which the division had stated that pursuant to the
amended C.R.C.P. 47(m), a basis no longer existed for prohibiting juror access during
deliberations unless such access would be “infeasible.” DeBella, 233 P.3d at 666 (quoting
McKinney, 80 P.3d at 829).
¶41 The jury eventually found the defendant guilty as charged, and he appealed,
arguing, as pertinent here, that the trial court had committed reversible error when it
allowed the jury unfettered access to the videotape during deliberations. See People v.
DeBella, 219 P.3d 390, 392 (Colo. App. 2009), rev’d, 233 P.3d 664 (Colo. 2010). Before the
defendant’s conviction was final, however, this court issued its decision in Frasco,
165 P.3d at 704, disapproving of the application of C.R.C.P. 47(m) to exhibits in criminal
proceedings and clarifying that “control over the use of exhibits during jury deliberations
in criminal proceedings must remain firmly within the discretion of the [trial] court.” The
DeBella division acknowledged that Frasco controlled but nonetheless affirmed. DeBella,
219 P.3d at 393–97.
¶42 We granted certiorari and reversed. See DeBella, 233 P.3d at 665. We began by
noting that Frasco had not announced a new rule of law but rather had reaffirmed this
court’s decision in Settle v. People, 504 P.2d 680, 680–81 (Colo. 1972), in which we had
established that trial courts retain discretionary control over jury access to trial exhibits.
See DeBella, 233 P.3d at 666. We thus viewed the question before us as whether the trial
court had abused its discretion in providing the jury with unfettered access to the
videotape during deliberations. See id. at 665.
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¶43 In addressing this question, we observed that because the trial court felt bound by
McKinney, “it thought its hands [were] tied with regard to the jury’s access to the tape.”
Id. at 668. As a result, we concluded that the trial court had made no determination as to
whether unfettered access to the videotape at issue would prejudice the defendant and,
thus, the court had abused its discretion. Id. at 667–68.
¶44 Turning to the appropriate remedy, we determined that the trial court’s abuse of
discretion was not harmless and warranted reversal of the defendant’s conviction. See id.
at 668. We based this conclusion on the facts that (1) the trial court’s failure to exercise
control over the jury’s access to the videotape or to specify why such control was
unnecessary left us with no record as to how—or even if—the jury reviewed the tape
during deliberations; (2) the “nearly silent record” prevented us from determining
whether the trial court had fulfilled its obligation to “observe caution” that the videotape
was not used in such a manner as to create a likelihood of the jury’s giving it undue
weight or emphasis; (3) “the videotape was the linchpin of the prosecution’s case”
because it was the only complete recounting of the charged assaults; and (4) because the
victim’s testimony deviated from his videotaped statement, the inconsistencies
“underscore[d] how central the victim’s credibility was to the resolution of the trial, thus
heightening the danger of providing the jury with unchaperoned access to only one side
of the story.” Id. at 668–69.
¶45 In reaching this conclusion, we rejected the People’s assertion that it was
speculative to presume that the jury watched the video at all, much less whether the jury
gave it undue weight or emphasis. Id. at 668. We stated, “Where holes in the record are
7
the result of the trial court’s error and pertinent inquiries on appeal are reduced to
exercises in speculation, the lack of record support should not weigh against the
defendant’s interests.” Id.
¶46 We reached a similar conclusion in Jefferson, ¶¶ 39–62, 393 P.3d at 500–04. There,
we acknowledged that the trial court understood its duty to exercise discretion in
determining whether to allow the jury unfettered access to a DVD of the child victim’s
forensic interview. Id. at ¶ 41, 393 P.3d at 501. The factors that the court had considered
in making this determination, however, did not support a conclusion that the court had
fulfilled its duty to guard against unfair or prejudicial use of the video at issue. Id. This
was because all three factors on which the court relied were “virtually ubiquitous” in
cases like the one there before us. Id. at ¶ 48, 393 P.3d at 502. We thus concluded that a
court that measured the potential for undue emphasis by relying on those factors was
likely to find all three factors present, regardless of the risk actually presented by giving
the jury unfettered access to the DVD at issue. Id. at ¶ 49, 393 P.3d at 502. Accordingly,
we determined that the trial court had abused its discretion in granting the jury
unfettered access to the DVD. Id. at ¶ 53, 393 P.3d at 503.
¶47 The question then became whether the error was harmless. For several reasons,
we could not say that it was. Id. at ¶ 62, 393 P.3d at 504.
¶48 First, we observed that “[t]he nature of the DVD and the significant role that it
played in [the defendant’s] trial only exacerbate[d] our concerns regarding the verdict
and the fairness of the proceedings.” Id. at ¶ 59, 393 P.3d at 503. In support of this
conclusion, we noted that (1) the prosecution had presented no physical evidence of the
8
crime; (2) the case thus turned on the victim’s allegations, which were at times
inconsistent; and (3) because the video contained details that the victim could not
remember when she testified at trial, the video likely served as the linchpin of the
prosecution’s case. Id. at ¶ 59, 393 P.3d at 503–04.
¶49 Second, we stated, “With unfettered access to the DVD during its deliberations,
the jury was able to watch and re-watch [the victim] describe the abuse in a manner
functionally equivalent to her live testimony, except with more—and more vivid—
detail.” Id. at ¶ 60, 393 P.3d at 504.
¶50 Finally, we noted that the prosecutor had told the jurors to review the DVD and
to decide for themselves. Id. As a result, we believed that the jury was more likely to
have placed undue emphasis on the DVD, particularly given the inconsistencies between
the victim’s recorded statement and her trial testimony and the dearth of physical
evidence in the case. Id. We thus concluded that the jury’s unfettered access to the DVD
substantially influenced the verdict and fairness of the proceedings. See id.
¶51 In reaching this conclusion, we were not persuaded by the People’s argument that
the brevity of the jury’s deliberations rendered any error harmless. Id. at ¶ 61, 393 P.3d
at 504. We noted that the length of the jury’s deliberations would have allowed the jurors
to watch the DVD repeatedly had they wished to do so. Id. Moreover, we reiterated our
statement in DeBella that when holes in the record (e.g., the absence of evidence regarding
whether the jury actually watched the DVD) resulted from the trial court’s error and
pertinent inquiries on appeal were reduced to speculation, the lack of a record should not
weigh against the defendant. Id.
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C. Application
¶52 In my view, DeBella and Jefferson are dispositive in the present case.
¶53 As in DeBella, the trial court relied on now-discredited principles of law in
allowing the jury to have unfettered access to the video at issue. In DeBella, 233 P.3d at
666, the trial court had relied on the court of appeals division’s opinion in McKinney,
which was subsequently disapproved in Frasco, 165 P.3d at 703. In the present case, the
trial court similarly relied on Pahlavan, 83 P.3d at 1141, and Isom, 140 P.3d at 104, both of
which had followed McKinney. Accordingly, for the reasons set forth in DeBella, 233 P.3d
at 667–68, I believe that the trial court abused its discretion in affording the jury
unfettered access to the videotape of the Green interview.
¶54 The question thus becomes whether this error was harmless. Unlike the majority,
I cannot say that it was.
¶55 As an initial matter, I note that I am unpersuaded by the People’s argument that it
is unclear whether the jurors even watched the video. In my view, the record reveals that
the trial court intended for the jury to have unrestricted access to the video. The
prosecution argued for such unfettered access, and the court agreed with the
prosecution’s argument. Moreover, the court ordered the prosecution to make the video
and associated equipment available for the jurors, and the court placed no restrictions on
the jurors’ viewing of that video. They needed only to contact the bailiff when they
wanted to watch it, and the parties appear to agree that such requests would not have
been on the record. And given the prosecution’s repeated reminders to the jurors that
10
they would have the opportunity to watch the video, I am unwilling to presume that they
did not do so.
¶56 Even if there were a question as to whether the jurors had watched the video,
however, as we stated in DeBella and reiterated in Jefferson, “[w]here holes in the record
[e.g., the absence of evidence regarding whether the jury actually watched a video] are
the result of the trial court’s error and pertinent inquiries on appeal are reduced to
exercises in speculation, the lack of record support should not weigh against the
defendant’s interests.” DeBella, 233 P.3d at 668; accord Jefferson, ¶ 61, 393 P.3d at 504.
¶57 In addition to the foregoing, as was the case with the recorded interviews in
DeBella and Jefferson, the video of Green’s interview was important to the prosecution’s
case. As noted above, it appears to have been the principal evidence of Ray’s intent to
kill, which was an element of many of the offenses with which he was charged and of
which he was convicted. Indeed, apparently acknowledging this fact, the prosecution
relied heavily (and repeatedly) in closing arguments on the Green video to argue that
Ray had the requisite intent.
¶58 Finally, at trial, Green had virtually no memory of the facts that he recounted in
the interview, which was close in time to the incident at issue. As a result, the jury would
have had to rely substantially on the Green interview to decide whether Ray had formed
the requisite intent, and they were able to watch and re-watch Green describe the events
at issue as if he were a witness inside the jury room, but without that testimony’s being
subject to cross-examination and without affording equal access to Ray’s side of the story.
See DeBella, 233 P.3d at 669 (noting that the inconsistencies between the victim’s recorded
11
statement and her trial testimony underscored how central the victim’s credibility was in
the case, “thus heightening the danger of providing the jury with unchaperoned access
to only one side of the story”).
¶59 For the reasons set forth in Jefferson, ¶ 60, 393 P.3d at 504, the jury’s ability to
review the video in this way presented a substantial risk that the jury would give the
video undue weight, and this risk was exacerbated by the lack of any cautionary
instruction from the court and by the prosecution’s reminders in closing arguments that
the jury would have the opportunity to watch the video in the jury room. See also id.
(noting that the prosecutor’s request in rebuttal closing argument that the jurors watch
the DVD there at issue likely resulted in the jury’s placing undue emphasis on the DVD
and that, given the inconsistencies between the witness’s recorded statement and her trial
testimony, the likelihood of such undue emphasis substantially influenced the verdict
and the fairness of the proceedings).
¶60 For these reasons, I believe that the trial court’s error in allowing the jurors
unfettered access to the video of the Green interview was not harmless.
III. Conclusion
¶61 In light of the foregoing, I would conclude that the trial court abused its discretion
in affording the jury unfettered access to the videotape of the Green interview. Moreover,
unlike the majority, I cannot say that this error was harmless. Accordingly, I would
reverse the division’s judgment on this point.
¶62 For these reasons, I respectfully concur in part and dissent in part from the
majority opinion in this case.
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I am authorized to state that JUSTICE HART joins in this concurrence in part and
dissent in part.
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