People v. Summitt

¶1concurring in part, dissenting in part, and dissenting from the judgment.

¶2I agree with the majority that whether Summitt’s conviction must be reversed due to the trial court’s admission of arrest evidence poses an evidentiary issue and not a constitutional question. I further agree that the arrest evidence lacked probative value and, therefore, was inadmissible. The majority and I part ways, however, on whether the admission of this prejudicial evidence was harmless error. I conclude that the admission into evidence of the arrest evidence warrants the reversal of Summitt’s conviction because of the inherently prejudicial nature of arrest evidence, aggravated by the prosecutor’s repeated remarks and the trial court’s erroneous instruction on consciousness of guilt. In contrast, the majority fails to consider the effect of the prosecutor’s remarks about the arrest evidence and considers the error harmless. Maj. op. at 372-78. Accordingly, I concur with sections I. and II.A.— II.D. of the majority opinion and respectfully dissent from section II.E. and the judgment.

¶3I. Harmless Error Analysis

¶4An appellate court must apply the harmless error standard to determine whether a case must be retried for the erroneous admission of improper evidence despite a timely objection. People v. Quintana, 665 P.2d 605, 612 (Colo.1983). The harmless error test requires an inquiry into whether the contested evidence substantially influenced the verdict or affected the fairness of the trial proceedings. Id.The proper inquiry is not whether there was sufficient evidence to support the guilty verdict without the improperly admitted evidence but, rather, whether the contested evidence substantially influenced the verdict or affected the fairness of the trial proceedings. Masters v. People, 58 P.3d 979, 1003 (Colo.2002). Only error that affected the “substantial rights of the parties” warrants reversal. C.A.R. 35(e); People v. Welsh, 80 P.3d 296, 310 (Colo.2003).

¶5To determine whether Summitt’s substantial rights were affected by the admission of the circumstances surrounding his arrest, I review the prejudicial nature of arrest evidence, the prosecutor’s comment on the evidence, and the trial court’s response in light of the evidence before the jury. The prosecutor’s comments on evidence wrongfully admitted are a proper consideration in the harmless error analysis, notwithstanding the majority’s statement that it need not review the effect of the comments because the defendant did not object during closing argument. Salcedo v. People, 999 P.2d 833, 841 (Colo.2000).

¶6Evidence on the events surrounding Sum-mitt’s arrest affected how the jury perceived him in a prejudicial manner. I analogize the effect of this evidence to requiring a defendant to wear shackles or a prison uniform: a subconscious instruction to the jury that a defendant is dangerous and should be treated like a criminal. Dressing a defendant as a dangerous criminal, instead of as an individual afforded the presumption of innocence, may interfere with the jury’s determination as to the guilt or innocence of the defendant. Eaddy v. People, 115 Colo. 488, 492,174 P.2d 717, 718 (1946) (“the presumption of innocence requires the garb of innocence ...”); see Illinois v. Allen, 397 U.S. 337, 344, 90 *329S.Ct. 1057, 25 L.Ed.2d 353 (1970) (“[T]he sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant .... ”). And the use of shackles or prison uniforms “suggests to the jury that the justice system itself sees a ‘need to separate a defendant from the community at large.’ ” Deck v. Missouri, 544 U.S. 622,125 S.Ct. 2007, 2013, 161 L.Ed.2d 953 (2005) (citing Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)).

¶7Similar to forcing a defendant to wear shackles or a prison uniform in front of the jury, testimony about a defendant’s arrest informs the jury about how the police thought the defendant should be treated and that he should be jailed. In this case, the testimony about the events surrounding Summitt’s arrest branded him a dangerous criminal in the eyes of the jury. Deputy Rusk testified that at least five law enforcement officers, from two jurisdictions, surrounded Summitt’s house. Deputy Long testified to six law enforcement officers surrounding the residence. This testimony informed the jurors that the police considered Summitt so dangerous as to require the assistance of a multitude of officers. Similarly, Deputy Long testified that at least one police officer was watching the back corner of the defendant’s house, strongly suggesting that the defendant was considered a flight risk. Although the suggestion of the defendant’s dangerousness was somewhat diminished because the police did not enter his home and arrest him without a warrant, this testimony evoked images of a dangerous defendant whose hide-out was surrounded by a small battalion of armed police officers. Such testimony branded Summitt in the eyes of the jurors “with an unmistakable mark of guilt.” Holbrook v. Flynn, 475 U.S. 560, 571, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (quoting Estelle v. Williams, 425 U.S. 501, 518, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (Brennan, J., dissenting)).

¶8The prosecutor took advantage of the prejudicial nature of arrest evidence by repeatedly emphasizing and misstating the circumstances of Summitt’s arrest throughout the trial. In Salcedo, this court determined that the prosecutor’s drawing attention to the wrongly admitted evidence once during closing argument warranted reversal. Salcedo, 999 P.2d at 841; see also People v. Suazo, 87 P.3d 124, 127 (Colo.App.2003). Here, the error is more egregious because the State continuously stressed the erroneously admitted arrest evidence.

¶9During opening argument, the prosecutor stated: “Finally, ladies and gentlemen, pay attention to how Mr. Summitt is apprehended. There will be another important part of how the pieces fit together in this case.” In their case-in-chief, the prosecution called four witnesses, two of whom testified about Summitt’s arrest.4 Also, during the State’s rebuttal closing, the prosecutor rhetorically asked:

[After leaving the hospital] where did he go? He ran, and hid, behind his mother’s doors, and he stayed there until the cops flushed him out. Is that the conduct of a guy that’s done nothing wrong, members of the jury? Or is that somebody huddled up inside, scared out of his wits, that finally the jig is up and he is going to be held responsible for what he has done? And I suggest to you it’s the latter.

¶10(Emphasis added.) The prosecutor’s rebuttal closing played on the inherently prejudicial nature of arrest evidence by depicting Summitt as a guilty defendant hiding out behind the walls of his home while the police adeptly brought him to justice. These comments further mischaraeterized the defendant’s actions as flight evidence, which the majority correctly determined was inadmissible. Thus, a significant portion of the prosecutor’s case erroneously revolved around the defendant’s arrest as part of a pattern of avoidance and flight.

¶11The majority discounts the effect of the prosecutor’s remarks because the defendant did not object to the argument. Maj. op. at 327-28. The defense preserved the error by objecting to the admission of the evidence. See People v. Dunlap, 975 P.2d 723, 745 (Colo.1999). After the trial court admitted the evidence, it was not merely unnecessary *330for the defense to object to the State’s closing argument, it would have been improper. The arrest evidence was admitted; the State could properly refer to the admitted evidence in its argument. People v. Ferrell, 200 Colo. 128, 131, 613 P.2d 324, 326 (Colo.1980). The error was in the admission of the evidence, to which the defense objected. Nevertheless, the comment aggravated the error of the wrongfully admitted evidence and, therefore, it is a proper consideration in the harmless error determination. Salcedo, 999 P.2d at 841; People v. Summitt, 104 P.3d 232, 237 (Colo.App.2004).

¶12The trial court’s instructions exacerbated the prosecutor’s impermissible focus. After the defense attorney objected to Deputy Long’s testimony about the events surrounding Summitt’s arrest, the trial court sustained counsel’s objection but allowed the previous testimony to come in “as it relates to the defendant’s consciousness of guilt, and for no other matter.” (Emphasis added.) The trial court’s statements suggested to the jury that Summitt’s guilty knowledge was why he initially decided to remain in his home. These remarks instructed the jury to consider the inadmissible circumstances of Summitt’s arrest for the impermissible purpose of consciousness of guilt. Due in part to the respect afforded to the trial judge by the jury and the judge’s instruction that he would explain the law to the jury, the court’s instruction likely impacted the weight the jury attached to Summitt’s supposed consciousness of guilt, which compounded the error of admitting the evidence of arrest. See Welsh, 80 P.3d at 311.

¶13The trial court continued:

I will also advise the jury that the police, before they can enter anybody’s home, even for arrest of that person, are required by law, to obtain a — an arrest warrant, and that a person is not required to allow a police officer into his or her home.

¶14The trial court’s second instruction left the determination of whether Summitt’s acts evidenced his consciousness of guilt or showed his desire that the police obtain a search warrant to the jury. The combination of these two instructions encouraged the jury to speculate about why Summitt remained in his home and resulted in unfair prejudice to the defendant.

¶15The evidence offered at trial was not so overwhelming as to overcome the prejudicial nature of the arrest evidence. Specifically, the People offered no physical evidence corroborating the defendant’s guilt. The prosecution’s only physical evidence was medical evidence about the extent of the victim’s injuries. This medical evidence was consistent both with the prosecution’s theory that Summitt pushed the victim out of his car and the defendant’s theory that she accidentally fell out of the car.

¶16Due to the lack of physical evidence, the prosecution’s case depended on the jury believing the victim’s statement of the incident. Several of her statements could be interpreted as logically problematic and, therefore, supporting the defendant’s theory of the case. For example, the victim testified that Summitt forced her into his car and then simultaneously restrained her in the passenger seat with one hand and started, steered, and shifted his manual automobile. Putting the key into the ignition, steering, and shifting would have been difficult to manage while holding a victim in the right-hand, passenger seat because each would typically involve the use of the driver’s right hand. Furthermore, although the victim testified that Summitt told her not to tell anyone he pushed her, on cross-examination she admitted that the defendant stated that he did not push her and that she better not tell people that he did. The prosecution used Summitt’s statement to depict him as a bully who went to the hospital to force the victim into not telling anyone he pushed her out of the car. Yet, the evidence also supports the defense case that Summitt was only protesting misinformation.

¶17The victim’s account of the incident, while believable, was not so obviously accurate that the jury was not influenced by the inadmissible evidence of Summitt’s arrest. Accordingly, I believe the arrest evidence weighed heavily on the credibility issue and, therefore, substantially influenced the verdict and affected the fairness of the trial proceedings. See C.A.R. 35(e); Welsh, 80 P.3d at 310; People v. Quintana, 665 P.2d at 612. Thus, the admission of the circumstances surrounding Summitt’s arrest into evidence cannot be deemed harmless error.

¶18*331II. Conclusion

¶19Because I do not consider the admission of arrest evidence harmless, I would reverse Summitt’s conviction.

¶20I am authorized to state that JUSTICE BENDER joins in this concurrence and dissent.

¶22concurring in part and in

¶23the judgment.

¶24Although I too would reverse the judgment of the court of appeals and reinstate the defendant’s convictions, I do not agree that the trial court abused its discretion by admitting limited evidence of the defendant’s arrest. I not only consider the majority’s discussion of this point to be substantially misguided; but in light of its own conclusion that admission of this evidence was harmless, its opinion about consciousness of guilt has absolutely no effect on its ultimate judgment, and I therefore consider it gratuitous as well.

¶25The majority opines that evidence concerning the circumstances of the defendant’s arrest could have been relevant to show his consciousness of guilt only if it demonstrated that he knew the police were trying to arrest him and his conduct amounted to a deliberate attempt to avoid being arrested. Here, it considered the evidence inadequate, largely because no one but the defendant’s mother testified that he was expressly told the police were waiting outside his house to arrest him; and when she relayed this information to him, he gave himself up. To my mind, this analysis misses the mark, both because the majority misperceives the general nature of a relevancy determination and because it mis-perceives the respective responsibilities of the trial court and jury in evaluating a condition of fact upon which the relevance of particular evidence depends.

¶26With regard to the latter, even if nothing short of a deliberate attempt by the defendant to avoid arrest could be considered probative of his consciousness of guilt, I believe the majority mistakenly concludes that the evidence in this case was insufficient. Where the relevance of evidence depends upon the fulfillment of a condition of fact, neither the trial court nor a reviewing court serves as the trier of fact. Rather, the rules of evidence require the trial court to admit the evidence upon or subject to the introduction of evidence sufficient to support a finding by the jury of that condition of fact. CRE 104(b) (Relevancy conditioned on fact). Only if there is no evidence from which reasonable jurors could find the condition of fact should the challenged evidence be rejected as irrelevant.

¶27Here the record clearly contained evidence from which reasonable jurors could conclude that the defendant was aware the police were surrounding his house to arrest him, and yet for some time he refused to submit. It was clear that the defendant returned home from the hospital, aware of the victim’s injuries and her accusation that he had pushed her from the moving car in which he was transporting her against her will. It was also clear that when Deputy Long arrived, there were already as many as four police officers openly watching the front and back of the house. Long testified that he could see someone, whom he believed to be the defendant, peeking from the window, and that he had asked the defendant to come out, without success. The jury also heard that police officers from Brighton had already made contact with the person who was inside, and although he was willing to give them a driver’s license through a slit in the screen, he refused to come out.

¶28Whether or not anyone besides the defendant’s mother actually told him that the police believed they already had probable cause for an arrest or that they would sit on the house until a warrant arrived, it is unrealistic to suggest that this evidence was not sufficient for reasonable jurors to infer that the defendant believed the police were surrounding his house to arrest him. The fact that he eventually came out, after being faced with the inevitable, in no way precluded a reasonable inference that he delayed and avoided arrest as long as he thought it advantageous or had any hope of being rescued from the situation. If deliberately avoiding arrest can be probative of the defendant’s consciousness of guilt, as even the majority concedes, the trial court did not act improperly under these circumstances in permitting the jury to decide whether the defendant was actually avoiding arrest.

¶29*332More fundamentally, however, I believe the majority’s analysis betrays a kind of mechanical, pigeonholing approach to the analysis of relevancy, which has been squarely rejected in this jurisdiction (at least since the adoption of the Colorado Rules of Evidence) as unduly limiting trial court discretion. Quite apart from a specific attempt to avoid police apprehension and thwart an imminent arrest, efforts of all kinds to delay or hinder an investigation are widely acknowledged to be probative of a defendant’s consciousness of his guilt. See, e.g., Moore v. United States, 757 A.2d 78, 83 (D.C.2000) (“Given [defendant’s] suspicious denial that he was not driving a stolen car, the jury could very well infer that [defendant] knew he was driving a stolen car and that his intent in approaching Officer Bryant was to discourage any police investigation of his crime.”); Commonwealth v. Johnson, 46 Mass.App.Ct. 398, 706 N.E.2d 716, 722 (1999) (evidence that defendant twice failed to attend voice identification line-up properly admitted to show consciousness of guilt); Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97, 106-07 (1995) (reasoning jury may infer defendant refused to participate in line-up because of his fear of identification due to his consciousness of guilt); U.S. v. Meling, 47 F.3d 1546, 1557 (9th Cir.1995) (evidence of defendant’s attempts to hinder FBI’s investigation properly admitted to show consciousness of guilt); People v. Edwards, 241 Ill.App.3d 839, 182 Ill.Dec. 428, 609 N.E.2d 962, 966 (1993) (“Defendant’s initial refusal to submit to blood testing has some tendency to indicate a consciousness of guilt and is therefore relevant and generally admissible.”); Marshall v. State, 85 Md.App. 320, 583 A.2d 1109, 1111 (1991) (“Interference with police investigation is recognized as conduct which may evidence a consciousness of guilt.”); State v. Sayles, 124 Wis.2d 593, 370 N.W.2d 265, 267 (1985) (finding error in trial court’s rejection of defendant’s testimony that he refused blood alcohol test because he wanted to consult his attorney first, after evidence of defendant’s refusal was admitted to show consciousness of guilt); State v. Mottram, 158 Me. 325, 184 A.2d 225, 230 (1962) (noting “consciousness of guilt could be shown by evidence that a witness refused to take a lie detector test on the ground that he believed the test was trustworthy or dependable.”).

¶30The reasons for not limiting the proof of consciousness of guilt to narrowly circumscribed categories have long been acknowledged and articulated. “[0]ne of the common and established uses of the mode of reasoning here involved is the inference from guilty conduct to the commission of the guilty deed .... ” 2 John Henry Wigmore, Evidence In Trials At Common Law § 273(1) (James H. Chadbourn Rev.1979) (emphasis in original). “In general, it may be premised, that almost any conduct may be open to this inference. The kinds of behavior which may properly suggest such a cause are beyond enumeration; they are as various and as changeable as men’s dispositions and emotions. No conduct is conclusive; but on the' other hand, almost no conduct is entirely without significance, greater or less according to the circumstances ....” Id. (emphasis in original). “ ‘Is a flight the only outward evidence of conscious guilt? So far from it, any indications of it, arising from the conduct, demeanor, or expressions of the party, are legal evidence against him. The law can never limit the number or kind of such indications.’ ” Id. (quoting Johnson v. State, 17 Ala. 618, 624 (1850)).

¶31If the many accounts of the defendant’s attempts to dissuade the victim from notifying the police and his precipitous departure from the hospital were credited by the jury at all, it must have also believed that he expected, at the very least, to be investigated for injuring the victim. To the extent that consciously hindering or delaying a police investigation by absenting oneself might be considered less probative than actually avoiding an imminent arrest, it would presumably be less prejudicial in the eyes of the jury as well. Obviously, neither demonstrates conclusively a defendant’s motive for refusing to cooperate and submit to police investigation, but by the same token, neither carries with it the potential for unfair prejudice of, for instance, evidence of uncharged criminal misconduct. As the majority appears to acknowledge, the balancing of probativeness and prejudice must remain largely within the discretion of trial courts, without their being subject to the second-guessing of appellate courts.

¶32Finally, I take issue with the majority’s choice to review the trial court’s evidentiary *333ruling at all. In light of its determination that other evidence in the record ultimately renders this ruling inconsequential, the majority makes clear that its discussion of relevance amounts to nothing more than obiter dicta. While occasions may certainly arise in which it is helpful, or even important, for an appellate court to explain itself or provide guidance beyond the narrow rationale for its holding, this is clearly not one of them. Evi-dentiary rulings in general, and rulings on relevance in particular, are inherently fact-driven, with little application beyond the evidence in a particular case. To the extent that the majority intends to propose a rule of general applicability, narrowing the kinds of evidence acceptable to show consciousness of guilt, I consider such a proposal ill-advised outside the context of an actual case or controversy that will be impacted by the application of that rule.

¶33Sound policy considerations support the exercise of judicial restraint in matters not necessary to the resolution of a live controversy. While I concur in the remainder of the majority’s opinion and in its judgment, I do not join its dicta concerning consciousness of guilt.