v. Thames

     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
                                                               August 8, 2019

                               

No. 16CA0076, People v. Thames — Constitutional Law — Fifth
Amendment — Fourteenth Amendment — Presumption of
Innocence; Evidence — Exclusion of Relevant Evidence on
Grounds of Prejudice, Confusion, or Waste of Time

     This is the first reported Colorado decision that addresses

whether a trial court violates a defendant’s right to be presumed

innocent when it permits the prosecution to show the jury a video of

the defendant wearing a prison uniform. A division of the court of

appeals concludes that the presumption of innocence was not

violated in this instance. In reaching this conclusion, the division

relies on cases from other jurisdictions holding that the risk of

prejudicing the defendant due to his clothing is not present when

the jury is shown a video depicting the defendant in a prison

uniform.
COLORADO COURT OF APPEALS                                        

Court of Appeals No. 16CA0076
Mesa County District Court No. 12CR517
Honorable Richard T. Gurley, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Douglas Thames,

Defendant-Appellant.


                       JUDGMENT AFFIRMED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division IV
                        Opinion by JUDGE LIPINSKY
                       Román and J. Jones, JJ., concur

                          Announced August 8, 2019


Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Alan M. Kratz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Douglas Thames, was the second person convicted

 for the sexual assault and murder of J.T. Nineteen years earlier, a

 jury had convicted Robert Dewey for the same crimes. The

 prosecution’s case against Dewey had included testimony that his

 DNA could have been present at the site of the murder. Because of

 the state of DNA testing at the time, however, those test results did

 not indicate the likelihood that the DNA recovered at the crime

 scene matched that of Dewey.

¶2    Fifteen years after Dewey’s conviction, DNA testing using an

 improved technology known as STR (Short Tandem Repeat) revealed

 that Thames’s DNA was present on objects found at the crime scene

 and under J.T.’s fingernails. The STR tests showed there was only

 a one in seven sextillion chance that the match to Thames was

 random.

¶3    As a result of the new DNA tests, Dewey was exonerated and

 released from prison. The same tests led to the filing of charges

 against Thames. A jury convicted Thames of first degree murder

 after deliberation, first degree felony murder, and first degree sexual

 assault.




                                   1
¶4    Thames contends on appeal that the trial court erred in not

 allowing him to introduce evidence of Dewey’s conviction or the

 DNA test results (the Results) presented at Dewey’s trial. Thames

 also contends that the trial court erred in permitting the prosecutor

 to comment on his silence during a video-recorded interrogation

 (the Interrogation). He further contends that the trial court should

 not have permitted the jury to view the video of the Interrogation

 because it showed him wearing prison garb. Thames also argues

 that the cumulative effect of these errors requires reversal. Lastly,

 he argues that the trial court violated his right to be free from

 double jeopardy by imposing mandatory statutory surcharges and

 costs (the Surcharges) outside his presence after sentencing.

¶5    We affirm but remand with instructions to allow Thames the

 opportunity to argue that he is entitled to a statutory waiver of the

 Surcharges.

                  I.    Facts and Procedural History

¶6    A neighbor discovered J.T.’s body in the bathtub of her

 apartment. J.T. had been beaten, sexually assaulted, and strangled

 to death with a dog leash. Pieces of soap had been inserted into her

 vagina.


                                    2
¶7     Dewey was an initial suspect. Police arrested him after DNA

  testing revealed the possibility that J.T.’s blood was on one of his

  shirts. As noted, a jury convicted Dewey for J.T.’s sexual assault

  and murder in 1996.

¶8     In 2011, new DNA testing exonerated Dewey. The testing

  revealed the presence of Thames’s DNA on the leash and

  underneath J.T.’s fingernails, among other locations.

¶9     After reviewing the new DNA results, law enforcement officers

  interrogated Thames regarding the murder of J.T. At the time of the

  Interrogation, Thames was incarcerated for an unrelated offense.

  The People then charged Thames with first degree murder after

  deliberation, first degree felony murder, and first degree sexual

  assault.

¶ 10   Thames challenged the admissibility of his statements during

  the Interrogation on the grounds that he had not knowingly and

  intelligently waived his right against self-incrimination. The trial

  court granted Thames’s motion to suppress his statements. The

  Colorado Supreme Court reversed. People v. Thames, 

, 

.




                                     3
¶ 11         At trial, Thames pursued an alternative suspect defense,

  arguing that Dewey had sexually assaulted and killed J.T. (Thames

  presented evidence that other individuals may also have committed

  the crimes. Evidence concerning those alternative suspects is

  irrelevant to this appeal.) After a four-week trial, the jury found

  Thames guilty on all counts.

¶ 12         On the murder counts, the trial court sentenced Thames to a

  term of life imprisonment in the custody of the Department of

  Corrections without the possibility of parole. The court further

  sentenced him to forty-eight years imprisonment on the sexual

  assault count. The court did not impose any surcharges or costs at

  the sentencing hearing.

       II.    The Trial Court Did Not Abuse Its Discretion by Refusing to
                         Admit Evidence of Dewey’s Conviction

¶ 13         Thames contends that the trial court violated his

  constitutional right to present a defense by refusing to admit

  evidence that a jury had previously convicted Dewey of the same

  crimes with which Thames was charged. We discern no error.




                                         4
                             A.   Standard of Review

¶ 14        We review a trial court’s ruling on evidentiary issues, including

  the admission of alternative suspect evidence, for an abuse of

  discretion. People v. Stewart, 

 (Colo. 2002). A trial

  court abuses its discretion when its ruling is manifestly arbitrary,

  unreasonable, or unfair, or is based on an erroneous view of the

  law. People v. Elmarr, 

, 

.

       B.     Law Governing Admission of Alternative Suspect Evidence

¶ 15        “Whether rooted directly in the Due Process Clause of the

  Fourteenth Amendment or in the Compulsory Process or

  Confrontation Clauses of the Sixth Amendment, the Constitution

  guarantees criminal defendants ‘a meaningful opportunity to

  present a complete defense.’” Holmes v. South Carolina, 

 (2006) (citations omitted); see also People v. Salazar, 

, 

. A criminal defendant is entitled

  to all reasonable opportunities to present evidence that might tend

  to create doubt as to his guilt. Elmarr, ¶ 26, 

.

¶ 16        However, the right to present a defense is generally subject to,

  and constrained by, familiar and well-established limits on the

  admissibility of evidence. Id. at ¶ 27, 

. The


                                         5
  admissibility of alternative suspect evidence depends on the

  strength of the connection between the alternative suspect and the

  charged crime. Id. at ¶ 22, 

.

¶ 17    To be admissible, alternative suspect evidence must be

  relevant under CRE 401 and its probative value must not be

  substantially outweighed by the danger of confusion of the issues or

  misleading the jury, or by considerations of undue delay under CRE

  403. Elmarr, ¶ 22, 

. But a defendant does not have

  the right to “present all the evidence he wishes or do so in the

  manner he chooses.” People v. Saiz, 

 (Colo. 2001)

  (citing Delaware v. Van Arsdall, 

 (1986)).

             A trial court retains the discretion to assess
             the incremental probative value of evidence
             offered by a criminal defendant and to exclude
             even logically relevant evidence that would be
             more wasteful of time, confusing, or
             misleading than helpful to the jury. . . . [I]t
             may not abdicate its responsibility to guard
             against prejudice and promote judicial
             efficiency by excluding evidence that is
             insufficiently probative to assist in the search
             for truth.

  

                                    6
   C.    The Trial Court Did Not Abuse Its Discretion by Limiting the
           Evidence Implicating Dewey as an Alternative Suspect

¶ 18    To support his argument that the trial court should have

  admitted evidence of Dewey’s conviction, Thames relies on the

  reasoning in Gore v. State, 

 (Okla. Crim. App. 2005).

  There, the Oklahoma Court of Criminal Appeals held that the

  defendant was entitled to present evidence that another individual,

  Williamson, had been convicted of the same murder for which the

  defendant was later charged. 

. The appellate court

  reasoned that the evidence — which included Williamson’s

  statement that he had dreamed of killing the victim, testimony by

  law enforcement officers and inmates who overheard Williamson

  admit to the crime, and statements by individuals that the victim

  had said Williamson had asked her out but she did not want to date

  him — was relevant in that it bore on the defendant’s guilt or

  innocence. 

 The court held that, by excluding this evidence, the

  trial court had deprived the defendant of his constitutional right to

  present a defense. 

.




                                    7
¶ 19   Gore, however, is distinguishable. In this case, the trial court

  allowed Thames to present evidence pointing to Dewey as an

  alternative suspect.

¶ 20   The trial court at first excluded evidence of Dewey’s trial and

  conviction. But, in the initial part of the trial, the court allowed

  Thames to present other evidence that Dewey had sexually

  assaulted and murdered J.T., including the following:

          • Dewey spent a significant amount of time at J.T.’s

             apartment before she died.

          • After J.T. kicked Dewey out of her apartment, Dewey said

             he was “going to get” J.T.

          • Dewey stayed in an apartment near J.T.’s on the night

             J.T. was sexually assaulted and murdered, but left that

             apartment in the middle of the night.

          • Dewey hid in a closet after police arrived at his

             apartment complex on the morning J.T.’s body was

             discovered.

  After the jury had heard this evidence, the court reversed itself and

  ruled that the prosecution had opened the door to the introduction

  of evidence of Dewey’s trial. Thames contends that, although the

                                     8
  jury heard substantial evidence suggesting that Dewey was the

  murderer, the trial court erred by not permitting him to tell the jury

  that Dewey had been convicted of the crimes.

¶ 21   While evidence of Dewey’s conviction may have been relevant

  because it provided a strong logical connection between Dewey and

  the sexual assault and murder of J.T., we conclude that the trial

  court did not abuse its discretion in refusing to admit evidence of

  the conviction under CRE 403. Saiz, 

. Unlike

  the defendant in Gore, Thames was able to implicate Dewey in the

  crimes by repeatedly emphasizing Dewey’s behavior both before and

  after the discovery of J.T.’s body. And, as the trial court held, any

  probative value of Dewey’s conviction was substantially outweighed

  by the danger that the jury would have “speculate[d] about why a

  different jury convicted Mr. Dewey” and conflated the issues

  between Dewey’s trial and Thames’s trial.

¶ 22   Further, introducing evidence of the conviction would have

  extended Thames’s trial. CRE 403; see Elmarr, ¶ 31, 

 (court must weigh probative value of alternative suspect

  evidence against danger of undue delay). After Thames presented

  evidence of Dewey’s conviction, the People would have had an


                                     9
  opportunity to introduce evidence of Dewey’s exoneration. This

  evidence could have involved extensive testimony regarding the

  advances in DNA technology between the time of Dewey’s trial and

  his exoneration.

¶ 23      Thus, we conclude that the trial court did not abuse its

  discretion in excluding evidence of Dewey’s conviction. (Because we

  resolve this issue under CRE 403, we need not address the

  unbriefed question of whether, under section 13-65-103(7)(a),

  C.R.S. 2018, Dewey’s conviction became a legal nullity upon his

  exoneration and, therefore, was not a past conviction. Our opinion

  should not be read as holding that an expunged conviction has, or

  does not have, legal significance.)

       III.    The Prosecutor Commented on Thames’s Demeanor While
              Answering Questions During the Interrogation and Not on His
                                       Silence

¶ 24      Thames next contends that, in closing argument, the

  prosecutor improperly commented on his silence during the

  Interrogation. We do not agree because the prosecution commented

  on the manner in which Thames answered the officers’ questions

  during the Interrogation, and not on Thames’s failure to speak.




                                       10
                           A.   Standard of Review

¶ 25   We review de novo whether the prosecutor impermissibly

  commented on a defendant’s right to remain silent. See People v.

  Ortega, 

, 

 (“‘[W]here

  constitutional rights are concerned,’ law application ‘is a matter for

  de novo appellate review.’” (quoting People v. Matheny, 

 (Colo. 2002))).

               B.       The Prosecution’s Closing Argument

¶ 26   During closing arguments, the prosecutor played clips from

  the video of the Interrogation, which the jury had seen during the

  trial. The prosecutor reminded the jury that the officers had not

  told Thames in advance why they were there and asked the jurors

  to “judge [Thames’s] statements in that context.”

¶ 27   The prosecutor said that, in the video, “[Thames] has a total

  lack of reaction to being accused of [J.T.’s] murder,” and that the

  jurors “can judge it” for themselves. The prosecutor then said,

            I say it’s a total lack of reaction. No real
            emotion, no anger. Hey, why are you accusing
            me of this? What would an innocent person
            say when confronted with another persons’
            [sic] murder?




                                     11
             It would be outrage. It would be defiant [sic].
             They would be screaming to the heavens I’m
             innocent. How can you accuse me of this? He
             wasn’t. No indignation, no surprise. No
             surprise that they’re accusing him of murder.

             It says yeah, he’s been waiting 18 years for
             this interview to happen. That’s the only way
             you can explain it. No connection to J.T. and
             yet he remembers the night 18 years later.

             We’ve been over this. He’s accused of murder
             and yet he shows no surprise and/or indignity.

  Defense counsel moved for a mistrial, asserting that these

  comments violated Thames’s right to remain silent. The trial court

  denied the motion.

¶ 28   The prosecutor then played additional clips of the

  Interrogation. The prosecutor argued that Thames’s reaction to the

  officer’s questions whether he had any remorse about J.T.’s murder

  was “[n]o indignation, no surprise, no hostility, no anger . . . .”

¶ 29   After playing another clip, the prosecutor said,

             He’s confronted with all these pieces of DNA
             being at the crime scene and he’s just nodding.
             He’s given out to say yeah, I was having a
             relationship with her.

             That’s why my DNA is over there. They were
             begging him to give them something else.
             Some other reason not to think he’s the
             murderer and he doesn’t give it to them.


                                     12
            In fact, his reaction again is not consistent
            with anything close to being a normal reaction.
            It is very abnormal and we would submit it is
            indicative of his guilt.

            He is trying to be too cool about being
            confronted with this. He doesn’t know how to
            react. A normal reaction is one of anger,
            frustration, surprise, shock.

            You can name the adjective he doesn’t give us
            because he’s calculating what he should be
            reacting, and he doesn’t want to show too
            much. You can draw your own inferences
            from this, but this is a very abnormal reaction.

¶ 30   After the prosecutor’s closing argument, defense counsel

  renewed the earlier motion for a mistrial. The court again denied

  the motion.

       C.   Law Governing Comments on a Defendant’s Demeanor

¶ 31   A defendant is constitutionally protected against self-

  incrimination and has the right to remain silent. People v. Herr,

  

 (Colo. App. 1993). Accordingly, a prosecutor

  may not allude to a defendant’s silence as indicating a

  consciousness of guilt. People v. Ortega, 

, 

 (1979) (finding prosecutor’s comment that

  “defendant’s statement to the Sheriff didn’t include a protestation of




                                    13
  innocence” was reversible error). Such a comment “effectively

  penalizes the defendant for exercising a constitutional privilege.” 

¶ 32   But a prosecutor may comment on the defendant’s demeanor

  while testifying, particularly because jurors receive an instruction

  that they may consider courtroom demeanor in assessing a

  witness’s credibility. See United States v. Gooch, 

 (9th Cir. 2007); People v. Constant, 

  (Colo. 1982) (“[A] prosecutor may draw reasonable inferences as to

  the demeanor and credibility of witnesses. Based upon the facts of

  this case, the prosecution’s argument is consistent with the

  instruction to the jury which permits the jury to consider the

  demeanor of witnesses for credibility purposes.”); cf. People v.

  Walters, 

 (Colo. App. 2006) (stating that the

  prosecution may not argue that jurors should discuss among

  themselves whether, like the prosecutor, they saw the defendant

  laughing and smiling following the victim’s trial testimony).

¶ 33   There is no meaningful distinction between the prosecution’s

  commentary on a defendant’s demeanor while testifying in the

  courtroom and commentary on a defendant’s demeanor while

  answering questions during a video-recorded interrogation that the


                                    14
  jurors viewed during trial. A jury may consider the manner in

  which a defendant answered questions during an interrogation.

  See Rothgeb v. United States, 

 (8th Cir. 1986).

  In Rothgeb, a state trooper was allowed to tell the jury that the

  defendant had held his breath, “pant[ed] like a dog,” and sweated

  profusely while answering questions about the killings of his wife

  and child. 

. “[E]vidence concerning a defendant’s

  demeanor during the questioning is . . . admissible . . . .” 

; see also People v. Vaughn, No. 3-12-0996, 

,

  at *9 (Ill. App. Ct. Sept. 15, 2015) (unpublished opinion) (finding no

  prosecutorial misconduct when the prosecutor commented on the

  defendant’s demeanor during recorded interviews shown to the jury

  because “[t]he jury was free to make whatever reasonable inferences

  it chose to make based upon the evidence”).

   D.    The Prosecutor’s Closing Argument Properly Commented on
                Thames’s Demeanor During the Interrogation

¶ 34    We conclude that the prosecutor did not comment on

  Thames’s silence during the interview. Rather, the comments were

  a permissible reference to Thames’s demeanor during the

  Interrogation. See Rothgeb, 

.



                                    15
¶ 35   Thames did not sit quietly when questioned during the

  Interrogation. He answered the investigators’ questions and

  repeatedly maintained his innocence, but without any display of

  emotion or anger. Using the same tone of voice, he said he did not

  know why investigators had found his DNA in J.T.’s apartment,

  denied ever having been in the apartment, denied ever meeting or

  seeing J.T., denied ever having sex with J.T., and said he was

  partying at another location at the time of the murder.

¶ 36   The prosecutor’s argument thus rested on how Thames denied

  his involvement in J.T.’s sexual assault and murder, and not on

  Thames’s silence in response to questions regarding his role in the

  crimes.

¶ 37   While the prosecutor did note that an innocent person “would

  be screaming to the heavens I’m innocent” if accused of murder, the

  prosecutor’s argument focused on Thames’s tone of voice and lack

  of “real emotion [or] anger” during the questioning. The words the

  prosecutor used — “screaming,” “outrage,” “defian[ce],”

  “indignation,” “surprise,” “indignity,” “anger,” “frustration,” and

  “shock” — highlighted Thames’s flat affect during the Interrogation.

  The prosecutor urged the jurors to recall Thames’s “total lack of


                                     16
  reaction” and “cool” demeanor, and not his silence in responding to

  the officers’ questions, in the video the jurors had seen.

¶ 38   In contrast, Ortega concerned a law enforcement officer’s

  testimony regarding the defendant’s questioning following his arrest

  for first degree trespass and felony theft of tools from a truck. See

  Ortega, 

, 

. The defense argued

  that the defendant had merely intended to remove the items from

  the truck for safekeeping after the property owner had been

  involved in an accident.

¶ 39   The prosecutor argued in closing that the defendant had had

  an opportunity to explain, but had failed to say, during his

  interrogation that he had merely attempted to safeguard the

  property. 

 In rebuttal closing, the prosecutor rhetorically asked

  why the defendant’s statement had not included a protestation of

  innocence. See 

, 

.

¶ 40   The supreme court held that these statements were an

  improper commentary on the defendant’s exercise of his right to

  remain silent because they “expressly directed the jury to consider,

  as evidence of the defendant’s guilt, his failure to protest his

  innocence or to offer an exculpatory statement.” 

, 597


                                     17
  P.2d at 1037; see United States v. Velarde-Gomez, 

 (9th Cir. 2001) (holding that prosecutor’s argument

  regarding the defendant’s lack of response when confronted with

  evidence against him violated the defendant’s privilege against self-

  incrimination and was not merely commentary on his demeanor);

  People v. Welsh, 

 (Colo. App. 2002) (“[T]he use of

  pre-arrest silence when the defendant does not testify

  impermissibly burdens the privilege guaranteed by the Fifth

  Amendment and thus is inadmissible in the prosecution’s case-in-

  chief as substantive evidence of guilt or sanity.”), aff’d, 

  (Colo. 2003).

¶ 41   Unlike the impermissible arguments in Ortega, Velarde-Gomez,

  and Welsh, the prosecutor in this case did not comment on

  Thames’s silence because Thames was not silent during the

  Interrogation. As the jurors saw for themselves when they watched

  the video, Thames responded to the investigators’ questions and

  denied having sexually assaulted or killed J.T. The prosecutor

  focused on the manner in which Thames answered those questions.

  For this reason, we conclude that the prosecutor did not

  impermissibly comment on Thames’s silence in violation of his right


                                    18
  against self-incrimination. See Gooch, 

;

  Constant, 

.

  IV.   The Trial Court Did Not Err by Permitting the Jury to View the
                          Video of the Interrogation

¶ 42    Thames next argues that the trial court erred in permitting the

  jury to view the video of the Interrogation because it depicted him

  wearing a prison uniform. We do not agree.

                         A.    Standard of Review

¶ 43    A reviewing court may not reverse a trial court’s decision to

  admit or exclude evidence absent a showing that the trial court

  abused its discretion. People v. Gibbens, 

 (Colo.

  1995); People v. Dist. Court, 

 (Colo. 1994).

  When reviewing a trial court’s admission of evidence in light of the

  balancing test of CRE 403, an appellate court must assign to the

  evidence the maximum probative value and the minimum unfair

  prejudice that a reasonable fact finder might attribute thereto.

  Gibbens, 

. To overcome this presumption in favor of

  the trial court’s ruling, the defendant must demonstrate that the

  decision was “manifestly arbitrary, unreasonable, or unfair.” People




                                    19
  v. Ibarra, 

 (Colo. 1993); see also People v.

  Czemerynski, 

 (Colo. 1990).

            B.   Law Governing the Presumption of Innocence

¶ 44    The Fourteenth Amendment to the United States Constitution

  guarantees defendants in state criminal cases the right to a fair

  trial. Estelle v. Williams, 

 (1976). And the

  presumption of innocence is “a basic component of a fair trial under

  our system of criminal justice.” 

¶ 45    That presumption “is directly undermined when the defendant

  is required to appear before the jury in visible restraints or prison

  clothes.” People v. Knight, 

 (Colo. App. 2006).

  “Thus, the Fifth and Fourteenth Amendments prohibit the use of

  physical restraints visible to the jury absent a trial court

  determination, in the exercise of its discretion, that they are

  justified by a state interest specific to a particular trial.” Deck v.

  Missouri, 

 (2005).

       C.   Showing the Jury the Video of the Interrogation Did Not
                    Violate the Presumption of Innocence

¶ 46    Thames contends that publication of the video of the

  Interrogation invited the jury to speculate about his criminal history



                                     20
  because of his attire. (For purposes of this analysis, we assume the

  jury believed Thames was wearing a prison uniform during the

  Interrogation, although the People contest this factual issue. The

  video showed him wearing green scrubs.) Thames asserts that this

  possible speculation denied him the presumption of innocence

  afforded to criminal defendants. We disagree.

¶ 47   More importantly, Thames has not alerted us to, nor are we

  aware of, any Colorado case holding that a court violates the

  presumption of innocence by allowing the jury to view a video

  showing the defendant attired in prison garb. The presumption of

  innocence is undermined only “when the defendant is required to

  appear before the jury in visible restraints or prison clothes.”

  Knight, 

 (emphasis added).

¶ 48   Allowing the jury to see a defendant in prison clothing during

  trial is problematic because

             the constant reminder of the accused’s
             condition implicit in such distinctive,
             identifiable attire may affect a juror’s
             judgment. The defendant’s clothing is so likely
             to be a continuing influence throughout the
             trial that, not unlike placing a jury in the
             custody of deputy sheriffs who were also
             witnesses for the prosecution, an unacceptable



                                    21
                 risk is presented of impermissible factors
                 coming into play.

  Williams, 

. “[E]very defendant is entitled to be

  brought before the court with the appearance, dignity, and self-

  respect of a free and innocent man, except as the necessary safety

  and decorum of the court may otherwise require.” Eaddy v. People,

  

, 

 (1946) (holding that a

  defendant cannot be compelled to wear prison clothing “throughout

  his trial”).

¶ 49    The risk of prejudicing the defendant due to his clothing is not

  present when the jury is shown a video depicting the defendant in a

  prison uniform. See Ritchie v. State, 

 (Ind.

  2007) (explaining that “[t]he concerns with having a criminal

  defendant appear in jail clothing or shackles in a courtroom

  proceeding are not directly applicable” to a video of the defendant’s

  police interview). As another court pointed out:

                 While it is easy to understand how viewing a
                 defendant in handcuffs and jail clothing during
                 trial might risk diluting the presumption of
                 innocence, the same cannot be said about
                 exposure to a video showing the defendant in
                 jail clothing and handcuffs during an interview
                 prior to trial. . . . [M]ost jurors would not be
                 surprised by the fact that a defendant was


                                        22
              handcuffed and wearing jail clothing while in
              jail prior to trial.

  Bramlett v. State, 

 (Okla. Crim. App. 2018).

¶ 50   Unlike the visual impact of a defendant’s attire throughout a

  trial, the clothing shown in a video lasting one hour and fourteen

  minutes will not be a “constant reminder” of the defendant’s

  condition or create a prejudicial, continuing influence in jurors’

  minds. Nelson v. Cain, No. CIV. A. 13-4998, 

, at

  *18 (E.D. La. June 23, 2014); see Thames, ¶ 3, 

  (noting that Thames’s interrogation lasted one hour and fourteen

  minutes).

¶ 51   Thames does not contend that the trial court required him to

  appear in the courtroom in visible restraints or prison clothes.

  Rather, in the video, he is not restrained, is not handcuffed, and is

  depicted seated in what appears to be a conference room with

  pictures on the wall. Under these circumstances, Thames was not

  deprived of his right to have the jury presume him innocent.

  Knight, 

.

¶ 52   To the extent Thames argues that our decision should be

  different because the prosecution modified the video of the



                                    23
  Interrogation to blur his prison identification badge and thereby

  improperly highlighted his incarceration, we are not persuaded.

  Even if the blurred badge drew the jurors’ attention to Thames’s

  prison clothing, the trial court did not require him to appear in the

  courtroom in a prison uniform. 

 Without this element, the

  presumption of innocence remained intact. 

¶ 53   Thus, we conclude that the trial court did not violate Thames’s

  right to be presumed innocent when it allowed the jury to view the

  video of the Interrogation.

  V.   The Trial Court’s Refusal to Admit Evidence of the Results Was
                                  Harmless

¶ 54   Thames next contends that the trial court violated his right to

  present a defense by refusing to admit the Results. We need not

  decide whether the court erred in this regard because we conclude

  that any error in the trial court’s refusal to admit this evidence does

  not require reversal.

                   A.     Testimony About the Results

¶ 55   The prosecution filed a pretrial motion pursuant to section

  16-3-309(5), C.R.S. 2018, to require in-person testimony to lay the

  foundation for admission of any laboratory reports on which



                                    24
  Thames might rely at trial. Yvonne Woods, a Colorado Bureau of

  Investigation analyst, testified on cross-examination that she had

  examined the Results, which a company called GeneScreen had

  prepared years before, when she had conducted her own analysis of

  the DNA evidence. She testified that the Results indicated “there

  could be some blood from J.T.” on Dewey’s shirt. She said that she

  had performed her own DNA testing on different sections of the

  shirt.

¶ 56   Defense counsel then moved to admit the Results. The

  prosecutor objected, arguing that Woods had not conducted the

  tests that produced the Results, as required under section

  16-3-309(5). The court ruled that, pursuant to the statute, the

  Results were inadmissible without the testimony of the analyst who

  had performed the underlying tests. Defense counsel filed a motion

  for a continuance to locate the analyst, which the trial court denied.

¶ 57   Defense counsel then attempted to admit the Results through

  the testimony of the detective who had arrested Dewey. The trial

  court again ruled the Results inadmissible under section

  16-3-309(5).




                                   25
                         B.    Standard of Review

¶ 58   We review a trial court’s admission of testimony for an abuse

  of discretion. Ibarra, 

. A trial court abuses its

  discretion if its decision “was manifestly arbitrary, unreasonable, or

  unfair.” 

¶ 59   An erroneous evidentiary ruling may constitute constitutional

  error if it deprives a defendant of, among other things, his right to

  present a defense. People v. Beilke, 

 (Colo. App.

  2009). A defendant’s right to present a defense, however, is violated

  “only where the defendant was denied virtually his only means of

  effectively testing significant prosecution evidence.” Krutsinger v.

  People, 

 (Colo. 2009). Thus, when an

  evidentiary limitation does not deprive a defendant of his sole

  means of testing the prosecution’s evidence, reversal is required

  only if any error substantially influenced the verdict or affected the

  fairness of the trial. 

.

        C.   Law Governing the Admission of Laboratory Results

¶ 60   Evidence rules that “infring[e] upon a weighty interest of the

  accused” and are “‘arbitrary’ or ‘disproportionate to the purposes

  they are designed to serve’” may violate a defendant’s constitutional


                                        26
  rights. Holmes, 

 (citation omitted). However, the

  Constitution requires only that the accused be permitted to

  introduce all relevant and admissible evidence. People v. Harris, 

 (Colo. 2002).

¶ 61   Colorado law limits the admissibility of laboratory results in

  certain circumstances. To permit the admission of laboratory

  results, a party can require the in-person testimony of the

  individual who conducted the tests that produced the results.

  § 16-3-309(5). (The statute expressly applies only to persons who

  testify “on behalf of the state.” Id. But we decide this issue on

  grounds other than the trial court’s erroneous application of the

  statute to a witness who testified on behalf of the defense.)

                      D.   Any Error Was Harmless

¶ 62   Thames raises several arguments regarding the Results. But

  we need only address his contention that, by refusing to admit the

  Results, the trial court deprived him of a meaningful opportunity to

  present a defense and to confront witnesses against him. We

  conclude that any error was harmless.

¶ 63   The trial court’s decision not to admit the Results did not

  substantially influence the verdict or affect the fairness of the


                                    27
  proceedings. The jury was shown several pieces of DNA evidence

  that linked Thames to the crime scene. Those test results placed

  Thames’s DNA in locations where no other suspect’s DNA was

  detected. Woods testified that Thames’s DNA was found on a

  blanket in J.T.’s apartment, the pieces of soap inserted in J.T.’s

  vagina, and the leash used to strangle J.T., as well as underneath

  J.T.’s fingernails.

¶ 64   Even though Woods did not testify at length about the Results,

  she did say it was possible that J.T.’s blood was on Dewey’s shirt.

  Further, the trial court did not prevent defense counsel from

  arguing in closing that J.T.’s blood was found on Dewey’s shirt.

¶ 65   During closing argument, defense counsel referred to the

  Results several times. Defense counsel argued that “J.T.’s blood

  was on the shirt back in 1996” and that Woods had tested different

  areas of the shirt when she conducted her analysis years later.

  Counsel further argued that, even though “the type of testing they

  did back then wasn’t as advanced . . . as it is now,” no witness had

  challenged the accuracy of the Results. Defense counsel also

  asserted “[t]here is not a concern that GeneScreen got it wrong back

  in 1996. Not a legitimate one.” Counsel concluded this argument


                                    28
  by stating, “So, J.T.’s blood was on the shirt in 1996. Just because

  they tested new areas of the shirt that didn’t have her blood spatter

  on it, does not mean that GeneScreen was wrong in 1996. That is

  faulty logic.”

¶ 66    Based on this record, we conclude that the trial court’s

  decision not to admit the Results was harmless.

       VI.   The Alleged Errors Do Not Amount to Cumulative Error

¶ 67    Thames further contends that, even if each of the above

  alleged errors does not separately require reversal, he was deprived

  of a fair trial because of the errors in the aggregate. We disagree.

¶ 68    To decide this issue, we must evaluate whether “[n]umerous

  formal irregularities . . . in the aggregate show the absence of a fair

  trial.” Howard-Walker v. People, 

, ___ P.3d ___,

  ___ (quoting Oaks v. People, 

, 

  (1962)). “A conviction will not be reversed if the cumulative effect of

  any errors did not substantially prejudice the defendant’s right to a

  fair trial.” People v. Whitman, 

 (Colo. App. 2007)

  (citing People v. Roy, 

 (Colo. 1986)). Individual

  rulings that adversely affect a party, if not determined to be

  erroneous, cannot serve as the basis for reversal under a


                                     29
  cumulative error analysis. People v. Clark, 

 (Colo.

  App. 2009), aff’d on other grounds, 

 (Colo. 2010).

¶ 69   As noted above, we have found no error in the trial court’s

  decision to refuse to admit evidence of Dewey’s conviction, the

  prosecutor’s comments during closing argument, or the admission

  of the video of the Interrogation. We assume, without deciding, that

  the refusal to admit the Results was error. Even if it was

  erroneous, however, Thames still received a fair trial because “[t]he

  doctrine of cumulative error requires that numerous errors be

  committed . . . .” People v. Rivers, 

 (Colo. App.

  1986) (emphasis added). Even assuming that the trial court erred

  once, a single error is insufficient to reverse under the cumulative

  error standard. 

 Accordingly, we conclude there is no basis for

  reversal on grounds of cumulative error.

       VII. Although Imposition of the Surcharges Did Not Violate
         Thames’s Double Jeopardy Rights, He Is Entitled to Argue He
                    Should Not Be Required to Pay Them

¶ 70   Thames contests the Surcharges, which the trial court

  imposed after sentencing: (1) a sex offender surcharge; (2) a special

  advocate surcharge; (3) a genetic testing surcharge; and (4) court

  costs. He contends that the imposition of the Surcharges following


                                    30
  his initial sentencing violated his double jeopardy rights. He

  further contends that he was wrongfully deprived of the opportunity

  to seek a waiver of the Surcharges based on his indigency or

  inability to pay. While we disagree that the trial court violated

  Thames’s double jeopardy rights, we remand to the trial court to

  allow Thames to request a waiver of the Surcharges.

       A.      Standard of Review and Law Governing Double Jeopardy
                     When a Court Corrects an Illegal Sentence

¶ 71        The alleged violation of a defendant’s double jeopardy rights is

  a legal question we review de novo. People v. Tillery, 

 (Colo. App. 2009), aff’d sub nom. People v. Simon, 

  (Colo. 2011). The Double Jeopardy Clauses of the United States

  and Colorado Constitutions protect a defendant from being twice

  punished for the same offense. U.S. Const. amends. V, XIV; Colo.

  Const. art. II, § 18. A court violates a defendant’s double jeopardy

  rights by “increasing a lawful sentence after it has been imposed

  and the defendant has begun serving it” because the increased

  sentence may, in certain circumstances, constitute multiple

  punishments for the same offense. People v. McQuarrie, 

 (Colo. App. 2002).



                                        31
¶ 72        An illegal sentence does not implicate double jeopardy,

  however. Such a sentence “may be corrected at any time by a

  sentencing court without violating a defendant’s rights against

  double jeopardy.” People v. Smith, 

 (Colo. App.

  2005); see also Crim. P. 35(a) (“The court may correct a sentence

  that was not authorized by law or that was imposed without

  jurisdiction at any time . . . .”); Bozza v. United States, 

 (1947) (holding that a sentence may be increased

  without implicating double jeopardy when the original sentence did

  not conform to a statutory requirement). We review the legality of a

  sentence de novo. People v. Bassford, 

, 

.

       B.    Imposition of the Surcharges to Correct an Illegal Sentence
             Does Not Violate Thames’s Rights Against Double Jeopardy

¶ 73        All four of the Surcharges are mandatory. See

  § 13-32-105(1)(a)-(b), C.R.S. 2018 (“[T]here shall be charged against

  the defendant a total docket fee of thirty [five] dollars, which shall

  be payable upon conviction of the defendant.”); § 18-21-103(1),

  C.R.S. 2018 (“[E]ach person who is convicted of a sex offense . . .

  shall be required to pay a surcharge . . . .”); § 24-4.2-104(1)(a)(II)(A),



                                       32
  C.R.S. 2018 (“[A] [special advocate] surcharge of one thousand three

  hundred dollars shall be levied on each criminal action resulting in

  a conviction . . . .”); § 24-33.5-415.6(3)(a), C.R.S. 2018 (“A cost of

  two dollars and fifty cents is hereby levied on each criminal action

  resulting in a conviction . . . for a felony . . . .”); see also People v.

  Hyde, 

, 

 (“The legislature’s use

  of the word ‘shall’ in a statute generally indicates its intent for the

  term to be mandatory.”).

¶ 74   A court must therefore impose the Surcharges unless it finds

  the defendant is entitled to a waiver.

¶ 75   Initially, we note that the special advocate surcharge is akin to

  a civil sanction and is not punitive. See McQuarrie, 

-

  83 (referring to the surcharge imposed by this statute as the

  “victims and witnesses surcharge”). Because this surcharge is not

  punitive, it does not implicate double jeopardy protections. 

¶ 76   Thames’s original sentence was contrary to statute, and

  therefore illegal, as the trial court did not include the Surcharges in

  the sentence. People v. Yeadon, 

, ¶ 51, ___ P.3d ___,

  ___ (cert. granted Mar. 25, 2019). Thames’s double jeopardy rights

  were therefore not implicated through the imposition of the


                                       33
  Surcharges. Smith, 

 (correcting an illegal sentence

  does not violate a defendant’s right against double jeopardy). For

  this reason, the trial court must amend the mittimus to address the

  Surcharges (either by imposing them or waiving them after

  considering Thames’s arguments that he is not required to pay

  them) and thereby correct his illegal sentence. Yeadon, ¶ 51, ___

  P.3d at ___.

   C.    The Trial Court Must Give Thames the Opportunity to Prove
          He Is Indigent or Otherwise Financially Unable to Pay the
                                 Surcharges

¶ 77    By statute, each of the Surcharges may be waived based on

  the defendant’s financial status. See § 18-21-103(4) (“The court

  may waive all or any portion of the surcharge required by this

  section if the court finds that a person convicted of a sex offense is

  indigent or financially unable to pay . . . .”); § 24-4.2-104(1)(c) (“The

  [special advocate] surcharge levied by this section may not be

  suspended or waived by the court unless the court determines that

  the defendant is indigent.”); § 24-33.5-415.6(9) (“The court may

  waive a cost or surcharge levied pursuant to [section 24-33.5-415.6]

  if the court determines the defendant is indigent.”); see also Chief

  Justice Directive 85-31, Directive Concerning the Assessment and


                                     34
  Collection of Statutory Fines, Fees, Surcharges, and Costs in

  Criminal, Juvenile, Traffic and Misdemeanor Cases (amended Aug.

  2011) (“If the statute or rule is silent as to the court’s authority for

  waiver or suspension of the specific fine, fee, surcharge, or cost

  being considered, this [Chief Justice Directive] shall provide

  authority for the court to waive or suspend the imposition or

  collection of the amount only in those instances where the court

  finds the Defendant or Respondent has no ability to pay the

  assessed amount.”).

¶ 78   Despite the statutory waiver language, the trial court imposed

  the Surcharges on Thames without giving him an opportunity to

  prove he falls within one or more of the exemptions. Thus, we

  remand to the trial court to afford Thames an opportunity to prove

  he is entitled to a waiver. Yeadon, ¶ 52, ___ P.3d at ___.

                              VIII. Conclusion

¶ 79   The judgment is affirmed. The case is remanded to the trial

  court with instructions to provide Thames with the opportunity to

  prove he is entitled to a waiver of one or more of the Surcharges.

       JUDGE ROMÁN and JUDGE J. JONES concur.




                                     35