COLORADO COURT OF APPEALS
2016COA126
Court of Appeals No. 14CA0401
Boulder County District Court No. 13CR854
Honorable Patrick D. Butler, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michelle Ann Hebert,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE MÁRQUEZ*
Lichtenstein and Miller, JJ., concur
Announced September 8, 2016
Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶1 Defendant, Michelle Ann Hebert, appeals the judgment of
conviction entered on jury verdicts finding her guilty of theft from
an at-risk adult and several tax offenses. Following our limited
remand order directing the district court to make further findings
about whether Hebert was entitled to appointed counsel at the time
of trial, the district court made those findings. We now address all
of Hebert’s appellate arguments and affirm her conviction.
I. Background
¶2 According to the prosecution’s evidence, Hebert convinced the
victim, an elderly man, to give her many loans totaling several
hundred thousand dollars and failed to pay back the loans. The
victim contacted the police, and the People initially charged Hebert
with theft from an at-risk adult.
¶3 Hebert was appointed counsel from the Office of the Public
Defender. The same day that appointed counsel entered his
appearance, the People moved to depose the victim pursuant to
section 18-6.5-103.5, C.R.S. 2015 (allowing for depositions of
at-risk adults in criminal cases). Because the victim’s health was
failing, the People requested that he be deposed from his home via
two-way video conference with both parties questioning him live
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from the courtroom. Hebert’s appointed counsel objected, arguing,
among other things, that (1) allowing the deposition to occur via
two-way video conference would violate Hebert’s Sixth Amendment
right to confront the victim face-to-face and (2) granting the motion
would render his assistance to Hebert ineffective because he would
not have enough time to prepare an effective cross-examination of
the victim. The district court held a hearing and granted the
motion, but ordered that the deposition not occur for another five
weeks to give Hebert’s appointed counsel time to prepare.
¶4 Six weeks after the district court granted the motion, the
victim was placed under oath and deposed at home via two-way
video conference, with both sides asking him questions from the
courtroom. Hebert was also present in the courtroom. The
deposition was recorded, and, because the victim died before trial,
the video recording was admitted at trial.
¶5 After the deposition but before trial, Hebert retained private
counsel to represent her. However, shortly thereafter, the People
charged Hebert with the additional tax-related offenses. Hebert’s
counsel then moved to withdraw, and the court granted the motion.
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Hebert requested appointed counsel, but the public defender’s office
determined that she was ineligible for appointed counsel.
¶6 Hebert represented herself at trial. The jury found her guilty
of all of the charged counts, and the district court entered a
judgment of conviction and sentenced her accordingly. She
appealed, arguing that the district court erred by (1) failing to make
its own findings about whether she was eligible for appointed
counsel after her private counsel withdrew and (2) admitting the
recording of the victim’s deposition at trial. As noted, we remanded
the case to the district court with directions to make its own
findings about Hebert’s eligibility for substitute counsel, and we
reserved addressing her argument about the deposition. Now that
the court has made the necessary findings, we address both issues
— Hebert’s eligibility for appointed counsel and the admission of the
victim’s deposition.
II. Hebert Was Ineligible for Appointed Counsel
¶7 Hebert argues that the district court erred by determining on
remand that she was ineligible for appointed counsel. We disagree.
¶8 We review the court’s decision for an abuse of discretion. See
People v. Schupper, 2014 COA 80M, ¶ 21.
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¶9 It is the defendant’s burden to prove indigency by a
preponderance of the evidence. Id. at ¶ 34. When determining
whether the defendant has met that burden, the district court
should consider the defendant’s complete financial situation,
including any secreted assets.
Id. at ¶ 26.
¶ 10 On remand, Hebert submitted her public defender application
and her 2012 joint tax return. The district court reviewed Hebert’s
application for appointed counsel, dated November 2013, in which
she stated that she had no income, three dependents, ten dollars in
a savings account, $2500 in other assets, and was separating from
her husband. The district court also reviewed her 2012 tax return,
dated April 2013, which showed that Hebert and her husband filed
a joint return and reported their total income as $76,051. Finally,
the district court considered Hebert’s and her husband’s testimony
at sentencing, which took place in January 2014. At that time, the
district court asked Hebert’s husband how many times he and
Hebert had separated. He replied that they had never been
separated. Indeed, Hebert subsequently explained to the court that
the only reason that she had indicated on her application for
appointed counsel that she and her husband were separating was
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so that she would qualify for appointed counsel. Considering all of
this evidence, the district court determined that Hebert was
ineligible for appointed counsel at the time of her November 2013
application.
¶ 11 Hebert argues on appeal that the district court abused its
discretion by failing to credit her statement in her application that
she was separating from her husband. She argues that because
they were separating, she no longer had access to his income and
was, in fact, indigent.
¶ 12 But it is the district court that determines the probative effect
and weight of the evidence. Id. at ¶ 27. And in doing so here, the
district court determined that regardless of Hebert’s representations
in her application, Hebert’s and her husband’s testimony at
sentencing constituted evidence that they had never separated. On
this evidence, the district court determined that their combined
income of $76,051 rendered Hebert ineligible for appointed counsel.
We conclude that the district court’s findings were supported by the
evidence, and we therefore perceive no abuse of discretion in its
determination that Hebert was not indigent and did not qualify for
appointed counsel.
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III. Admission of Previously Recorded Two-Way Video Deposition
A. Fair Trial
¶ 13 Hebert contends she was denied the right to a fair trial when
the district court admitted the victim’s video deposition testimony
without adequate time for defense counsel to prepare for the
examination. We perceive no error in the court’s ruling.
¶ 14 In June 2013, Hebert’s counsel argued the People’s request to
depose the victim was premature, he had not been given the
opportunity to properly review discovery, and his preparation for
the deposition would be ineffective.
¶ 15 The court ordered that the hearing be delayed until August
2013 to give the defense sufficient time to prepare. The court
conducted the deposition via two-way video conference on August 8,
2013. Defendant was represented by counsel who cross-examined
the victim.
¶ 16 In our view, providing additional time to prepare was a proper
response to counsel’s concerns, and Hebert was not denied the
right to a fair trial.
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B. Confrontation Right
¶ 17 Hebert also argues that admitting the video recording of the
victim’s deposition violated her Sixth Amendment confrontation
right because she was unable to confront the victim face-to-face at
the deposition. She has asserted, in a perfunctory manner, a
violation of her confrontation right under the Colorado Constitution,
but has not developed any analysis or argument under the state
constitutional standard either before the district court or on appeal.
We will therefore not engage in an independent analysis of this
assertion. See People v. Hill, 228 P.3d 171, 176-77 (Colo. App.
2009) (declining to address conclusory assertion that defendant’s
confrontation right was violated). Instead, we review the Sixth
Amendment confrontation argument de novo, see People v. Merritt,
2014 COA 124, ¶ 25, and disagree with Hebert.
¶ 18 The Sixth Amendment provides all criminal defendants with
the right to confront witnesses who testify against them at trial.
U.S. Const. amend. VI. The combined effect of the elements of
confrontation — the physical presence of the witness, the testimony
being given under oath, the defendant’s opportunity to
cross-examine the witness, and the fact finder’s ability to observe
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the witness’s demeanor — ensures compliance with the Sixth
Amendment and that the admitted evidence is reliable. See
Maryland v. Craig, 497 U.S. 836, 846 (1990). Ordinarily, the
physical presence element of confrontation includes the right to a
face-to-face meeting with prosecution witnesses when they testify.
See
id. at 844.
¶ 19 But the Supreme Court has made clear that a defendant’s
right to confront witnesses face-to-face is not absolute.
Id. In
Craig, the Court addressed the constitutionality of receiving a child
victim’s testimony via live video from a separate location in which
the defendant was not present.
Id. at 841-42. The Court explained
that the Sixth Amendment “reflects a preference for face-to-face
confrontation at trial . . . that must occasionally give way to
considerations of public policy and the necessities of the case.”
Id.
at 849 (citations omitted). In these situations, the absence of a
face-to-face confrontation at trial does not violate a defendant’s
confrontation rights if the “denial of such confrontation is necessary
to further an important public policy and . . . the reliability of the
testimony is otherwise assured.”
Id. at 850.
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¶ 20 The at-risk adult deposition statute provides that in “any case
in which a defendant is charged with a crime against an at-risk
adult . . . the prosecution may file a motion with the court at any
time prior to commencement of the trial, for an order that a
deposition be taken of the testimony of the victim . . . and that the
deposition be recorded and preserved on video tape.”
§ 18-6.5-103.5(1). If the court grants the request and the
deposition occurs, the court may admit the video at trial if “the
court finds that the victim . . . is medically unavailable or otherwise
unavailable within the meaning of rule 804(a) of the Colorado rules
of evidence.” § 18-6.5-103.5(4). Hebert does not allege that taking
or admitting the deposition of the victim here violated this statute.
¶ 21 We are aware of no Colorado appellate court opinion
addressing the circumstances under which admitting a video
recording of a deposition of an at-risk adult victim, conducted via a
two-way video conference, would violate a defendant’s confrontation
rights. However, other jurisdictions have examined live video
conference testimony for confrontation violations under the analysis
set out in Craig. See, e.g., Rivera v. State, 381 S.W.3d 710, 713
(Tex. App. 2012). And our supreme court has held that the
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confrontation concerns and analysis articulated in Craig apply
equally to live video testimony and previously recorded video
testimony. See Thomas v. People, 803 P.2d 144, 151 (Colo. 1990)
(addressing confrontation right implications of previously recorded
video testimony that was preserved pursuant to the statute allowing
videotape depositions of child sexual assault victims, section
18-3-413, C.R.S. 2015). Section 18-3-413 contains language
similar to that in the at-risk adult statute.
¶ 22 We therefore apply Craig and Thomas to the circumstances of
this case and conclude that admitting the video of the victim’s
deposition did not violate Hebert’s confrontation rights because (1)
the video conference procedure was necessary to protect the health
of the victim and (2) the procedure ensured the reliability of the
victim’s testimony.
¶ 23 Before ordering the deposition, the district court reviewed two
letters and an affidavit from the victim’s doctor detailing his medical
condition and the probable health effects of requiring him to testify
in court or at home with Hebert physically present. The doctor
wrote that the victim was currently in hospice care at home and his
survival was measured in months. The doctor also wrote that
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deposing the victim with Hebert physically present would cause a
rise in the victim’s blood pressure that, given his frail heart
condition, could be fatal. Based on this evidence, the district court
found that the victim was physically unavailable and a two-way
video conference deposition was necessary. Indeed, the victim’s
health was so frail that he died in the four months between the
deposition and trial. In light of this evidence, we agree with the
district court’s finding that conducting the deposition without
Hebert physically present was necessary to protect the victim’s
health.
¶ 24 To the extent that the reliability of the victim’s testimony might
be an issue, the victim gave his deposition testimony under oath
and was subjected to contemporaneous cross-examination by
Hebert’s counsel, and, because the video deposition was played at
trial, the jury was able observe the victim’s demeanor while
testifying. See Craig, 497 U.S. at 846. Moreover, when permitting
the deposition, the district court stated that it would ensure that
there would be nobody in the room with the victim who, out of the
view of the parties and the camera, could signal to him about how
to testify during the deposition. See Craig,
497 U.S. at 850; United
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States v. Abu Ali, 528 F.3d 210, 242 (4th Cir. 2008) (the defendant’s
confrontation rights were not violated by admission of previously
recorded video of two-way videoconference depositions of foreign
witnesses); see also Thomas,
803 P.2d at 151 (video of deposition of
child sexual assault victim was reliable and therefore admissible
when child was questioned (1) by one therapist approved by the
prosecution and one therapist approved by the defense, (2) under
oath, and (3) out of the defendant’s presence with the attorneys and
the defendant communicating with the therapists by passing them
notes).
¶ 25 We also note that the victim’s testimony was admissible under
the Supreme Court’s confrontation analysis in Crawford v.
Washington,
541 U.S. 36 (2004). In that case, the Court held that
testimonial hearsay did not violate the Confrontation Clause as long
as the declarant was unavailable and the defendant had a prior
opportunity for cross-examination.
Id. at 68. This appears to be a
different confrontation standard than that articulated in Craig.
Another division of this court has recognized the potential conflict
between Craig and Crawford and has suggested that although the
two opinions are not incompatible, the Crawford standard applies
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to testimonial hearsay challenged under the federal confrontation
right. See People v. Phillips, 2012 COA 176, ¶¶ 53-54, 78. We need
not resolve any conflict that may exist between Craig’s and
Crawford’s application to testimonial hearsay because, in addition
to being admissible under Craig as discussed above, the victim’s
testimony also satisfied both of Crawford’s requirements: the victim
was deceased at the time of trial and Hebert had a full opportunity
to cross-examine him during the deposition.
¶ 26 We therefore conclude that admitting the two-way video
deposition did not violate Hebert’s Sixth Amendment confrontation
rights.
IV. Conclusion
¶ 27 The judgment of conviction is affirmed.
JUDGE LICHTENSTEIN and JUDGE MILLER concur.
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