People v. Gray

     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
                                                           February 27, 2025

                                

No. 23CA0085, People v. Gray — Constitutional Law — Sixth
Amendment — Confrontation Clause; Evidence — Witnesses —
Cross-Examination — Probationary Status

     This is the first published opinion to consider whether the

holding of Margerum v. People, 

, 

 — that

criminal defense counsel can always cross‑examine a witness

regarding the witness’s probationary status — extends to situations

where the witness was on probation when the witness provided law

enforcement officers with a statement regarding the underlying

incident but is no longer on probation at the time of trial. The

division concludes that, under the facts of this case, the Margerum

rule does not apply to a witness who satisfied the terms of his

probation before trial.
COLORADO COURT OF APPEALS                                          

Court of Appeals No. 23CA0085
Weld County District Court No. 21CR1485
Honorable Julie C. Hoskins, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mardi Jean Gray,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division VII
                         Opinion by JUDGE LIPINSKY
                       Johnson and Moultrie, JJ., concur

                        Announced February 27, 2025


Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendants in Colorado have the unconditional right to

 cross-examine a prosecution witness about the witness’s

 probationary status when the witness is on probation in the “same

 sovereign” at the time of trial. Margerum v. People, 

, 

, 240. The supreme court noted in Margerum

 that, “when a prosecution witness is on probation, the key question

 is whether there exists a ‘might have been influenced nexus’

 between the witness’s probationary status and her potentially

 biased motive for testifying.” Id. at ¶ 11, 454 P.3d at 239 (quoting

 Kinney v. People, 

 (Colo. 2008)). For this reason,

 the jury must be permitted to consider whether the witness’s trial

 testimony “could be prompted by fear or concern for possible

 jeopardy to his probationary status,” 

 (quoting People v. Bowman,

 

 (Colo. 1983)), and whether the witness “might

 be influenced by a promise of, or hope or expectation of, immunity

 or leniency,” 

 (quoting People v. King, 

 (Colo. 1972)). “Therefore, the defense must be permitted to

 question a prosecution’s witness about her probationary status

 when the witness is on probation in the same sovereign as the

 prosecution.” Id. at ¶ 12, 454 P.3d at 240.


                                   1
¶2    A division of this court extended the reasoning of Margerum to

 situations where the witness faces criminal charges in the same

 judicial district in which the prosecution seeks the witness’s

 testimony. See People v. Reynolds-Wynn, 

, ¶ 36, 

, 1218. As the Reynolds-Wynn division explained, “the

 defense must be permitted to question a prosecution witness about

 his pending criminal charge in the same judicial district in which

 the witness is testifying against the defendant” because, consistent

 with the reasoning of Margerum, “[t]he pendency of such a charge

 against the witness is always relevant to show that the witness’s

 testimony ‘might be influenced by a promise for, or hope or

 expectation of, immunity or leniency.’” 

 (quoting Kinney, 

).

¶3    In this appeal, Mardi Jean Gray seeks reversal of her

 judgment of conviction for second degree assault and third degree

 assault. She contends that the trial court violated her

 constitutional right to confront her accusers by not permitting her

 to cross-examine Timothy Canciamilla, the alleged victim, about his

 probationary status at the time he spoke with police officers

 regarding an incident in which Gray struck and choked him (the


                                   2
 incident), even though Canciamilla was no longer on probation at

 the time of trial. We decline to extend the unconditional right of

 cross-examination articulated in Margerum to cases where the

 witness is no longer on probation at the time of trial.

¶4    Gray also raises a sufficiency of the evidence challenge,

 contending that the prosecution failed to disprove her affirmative

 defense of self-defense beyond a reasonable doubt.

¶5    Because we disagree with both contentions, we affirm.

                           I.    Background

¶6    Gray and Canciamilla were dating at the time of the incident.

 There was no dispute that Gray repeatedly struck Canciamilla and

 choked him. Gray’s theory of defense at trial was that she had

 acted in self-defense after Canciamilla shoved her down stairs by

 the throat. In Part II.A.1 below, we summarize the evidence

 introduced at trial regarding the incident.

¶7    We address Gray’s sufficiency of the evidence argument first

 because, if we were to reverse on that issue, we would not need to

 address her argument that the court abused its discretion and

 violated her rights under the Confrontation Clauses of the United

 States and Colorado Constitutions.


                                    3
                                II.   Analysis

               A.     Sufficiency of the Evidence Regarding
                    Gray’s Affirmative Defense of Self-Defense

                           1.    Additional Facts

¶8     The jury could reasonably have found the following facts from

  the evidence introduced at trial.

¶9     Gray and Canciamilla began arguing in Gray’s home one

  evening after they had been drinking together. Edward Epperson;

  his wife, Desiree Jones; and their children, who also lived in the

  house, were present during the incident.

¶ 10   Epperson told Gray and Canciamilla to stop arguing and to

  “keep it down.” Gray asked Canciamilla to leave the house. He

  walked to his car, realized he was too intoxicated to drive, and

  returned to the house.

¶ 11   One of Epperson and Jones’s children ran out of the house

  and told Canciamilla that Gray had “scratched her or something.”

  Canciamilla confronted Gray in the basement.

¶ 12   Canciamilla “screamed and yelled” at Gray, saying, “[I]f you’re

  going to hit a child, hit me.” Canciamilla told the responding

  officers that Gray then paused and started hitting him on the side



                                      4
  of the head. After Canciamilla said, “[I]s that all you have?” Gray

  put her hands around his throat and squeezed his neck.

  Canciamilla struggled to breathe, gasped for air, and gagged.

  Epperson testified that Canciamilla was “pretty purple” and that

  “his eyes rolled in the back of his head like he was gasping for air.”

¶ 13   Gray struck Canciamilla five or six times. Canciamilla told the

  officers that he did not defend himself and did not put his hands on

  Gray.

¶ 14   Epperson grabbed Gray, pulled her off Canciamilla, and told

  her to go upstairs. Jones called a friend, Chelsea Kretzmeier, and

  asked her to “come get the kids and . . . get them out of the house

  until [Jones] could get the situation resolved.”

¶ 15   When Kretzmeier arrived at the house, Gray “was yelling and

  screaming” at Epperson and Jones. Kretzmeier testified that Gray

  “went after [Canciamilla] as he went outside,” and she was “still

  screaming and yelling.” Canciamilla was crying by his car.

  Kretzmeier said she had to use physical force to keep Gray away

  from Canciamilla. Kretzmeier testified, “When it was clear to me

  that [Gray] was not going to de-escalate, I told [Jones] it was time to

  call the cops, that this was getting out of control.”


                                     5
¶ 16   Jones called 911. The responding officers spoke with Gray,

  Canciamilla, Epperson, Jones, and Kretzmeier.

¶ 17   Gray told Officer Janet Steingart that, before she struck

  Canciamilla, “[h]e shoved me down the stairs by my throat.” Officer

  Steingart said that Gray gave her a tour of the house and showed

  her the stairs down which Canciamilla allegedly shoved her.

  According to Officer Steingart, the landing at the bottom of the

  stairs was made of concrete.

¶ 18   Officer Steingart reported seeing dried blood on Gray’s lips,

  although she did not observe any physical evidence that Gray had

  been thrown down the stairs to the basement, as she claimed.

  According to Officer Steingart, Gray did not have any injuries

  “consistent with being shoved down” stairs or hitting concrete, and

  there was no “hole in the wall” or other indicia of a fight at the

  stairs. Kretzmeier testified that Gray said the incident was not her

  fault and that Kretzmeier did not observe any injuries on Gray “that

  [she] could tell.”

¶ 19   Epperson told Officer Doryian Barboza that the dried blood

  around Gray’s mouth may have resulted from her biting her lips or




                                     6
  from her “bad gums.” Gray told Officer Steingart that she had

  “probably” bit her lip or tongue.

¶ 20   None of the witnesses, including the four witnesses the

  defense called, said they saw or heard Canciamilla shove Gray down

  the basement stairs. Gray exercised her Fifth Amendment right not

  to testify. See People v. Roberson, 

, 

 (“The Fifth Amendment to the United States

  Constitution, which is applicable to the states through the

  Fourteenth Amendment, . . . guarantees that no person ‘shall be

  compelled in any criminal case to be a witness against himself.’”)

  (quoting U.S. Const. amend. V); see also Colo. Const. art. II, § 18.

  Therefore, Officer Steingart’s testimony regarding Gray’s statements

  to her was the only evidence introduced at trial supporting the

  defense’s argument that, before Gray struck and choked

  Canciamilla, he had shoved Gray down stairs by the throat.

                        2.    Standard of Review

¶ 21   “[W]e review the record de novo to determine whether the

  evidence before the jury was sufficient both in quantity and quality

  to sustain the convictions.” People v. Harrison, 

,

  

, 23 (quoting Dempsey v. People, 

, 807


                                      7
  (Colo. 2005)); see People v. Tomaske, 

, ¶¶ 31-32, 

, 539-40 (explaining that the court reviews de novo

  whether the prosecution presented sufficient evidence to disprove

  an affirmative defense).

       3.     The Law Governing Sufficiency of the Evidence Challenges
                      When a Defendant Argues Self-Defense

¶ 22        “The Due Process Clauses of the United States and Colorado

  Constitutions require proof of guilt beyond a reasonable doubt on

  each of the essential elements of a crime.” People v. Duncan, 

 (Colo. App. 2004). To determine whether the

  prosecution presented sufficient evidence to support a defendant’s

  conviction, we ask “whether the relevant evidence, both direct and

  circumstantial, when viewed as a whole and in the light most

  favorable to the prosecution, is substantial and sufficient to support

  a conclusion by a reasonable mind that the defendant is guilty of

  the charge beyond a reasonable doubt.” People v. Donald, 

, 

, 7 (quoting Clark v. People, 

 (Colo. 2010)). In conducting this analysis, we “give the

  prosecution the benefit of every reasonable inference which might




                                       8
  be fairly drawn from the evidence.” Harrison, ¶ 32, 465 P.3d at 23

  (quoting People v. Perez, 

, 

).

¶ 23   A defendant may raise a sufficiency of evidence argument for

  the first time on appeal, as Gray did here. See McCoy v. People,

  

, 

.

¶ 24   “‘Affirmative defense’ means that unless the state’s evidence

  raises the issue involving the alleged defense, the defendant, to

  raise the issue, shall present some credible evidence on that issue.”

  § 18-1-407(1), C.R.S. 2024. When a defendant asserts an

  affirmative defense, it “effectively becomes an additional element of

  the charged offense.” Roberts v. People, 

, 

.

¶ 25   “If the issue involved in an affirmative defense is raised, then

  the guilt of the defendant must be established beyond a reasonable

  doubt as to that issue as well as all other elements of the offense.”

  § 18-1-407(2). “[T]he prosecution bears the burden of proving

  beyond a reasonable doubt that the affirmative defense is

  inapplicable.” Roberts, ¶ 22, 

. Thus, “[w]hile the

  defendant bears the burden of going forward, Colorado law dictates

  that once that burden has been met, the prosecution has the


                                     9
  burden of disproving the claimed affirmative defense beyond a

  reasonable doubt.” People v. Garcia, 

 (Colo.

  2005).

¶ 26   Self-defense is an affirmative defense created by statute.

  Section 18-1-704(1), C.R.S. 2024, says, in relevant part, that

            a person is justified in using physical force
            upon another person in order to defend
            [herself] . . . from what [she] reasonably
            believes to be the use or imminent use of
            unlawful physical force by that other person,
            and [she] may use a degree of force which [she]
            reasonably believes to be necessary for that
            purpose.

¶ 27   A defendant is entitled to an instruction on self-defense if the

  defendant presents “some credible evidence” supporting that

  affirmative defense. Pearson v. People, 

, 

, 1008. In this case, the court gave the jury a self-defense

  instruction. Thus, the issue before us is not whether Gray was

  entitled to argue self-defense based on the evidence introduced at

  trial; rather, we must decide whether, after considering the

  evidence, the jury could reasonably have found that the prosecution

  disproved beyond a reasonable doubt either of the two prongs of

  self-defense specified in section 18-1-704(1).



                                    10
¶ 28   Therefore, the prosecution could have defeated Gray’s

  affirmative defense of self-defense by proving beyond a reasonable

  doubt that Gray (1) did not reasonably believe that Canciamilla was

  using or would imminently use unlawful physical force or (2) did not

  use a degree of force which she reasonably believed to be necessary

  to defend herself. See § 18-1-704(1).

        4.    The Prosecution Introduced Sufficient Evidence to
              Disprove Gray’s Self-Defense Affirmative Defense
                        Beyond a Reasonable Doubt

¶ 29   We initially consider whether the prosecution’s evidence was

  “sufficient to disprove beyond a reasonable doubt” that Gray

  reasonably believed Canciamilla was using or would imminently use

  unlawful physical force. Harrison, ¶¶ 10-12, 24, 36-39, 41, 465

  P.3d at 19-20, 22, 24-25 (holding that the prosecution presented

  sufficient evidence to disprove the defendant’s affirmative defense

  that someone had in good faith reported defendant’s drug overdose

  to “the 911 system” and, therefore, defendant was immune from

  liability for possession of a controlled substance and drug

  paraphernalia). “The touchstone of self-defense is whether, from

  the standpoint of the defendant, [her] belief that danger was

  imminent is reasonable.” People v. Rodriguez, 

, 286


                                   11
  (Colo. App. 1994). We disagree with Gray’s implication that her

  statement to Officer Steingart that Canciamilla shoved her down the

  basement stairs by the throat, without more, establishes that the

  prosecution failed to meet its burden of proof on the first prong of

  section 18-1-704(1).

¶ 30   As noted above, no witnesses testified that they had seen or

  heard Canciamilla shove Gray down the basement stairs, much less

  shove her by the throat. Rather, the witnesses in the house at the

  time of the incident painted a picture of a one-sided altercation in

  which Gray struck the first blow, and Canciamilla passively took

  Gray’s blows without fighting back. Canciamilla told the officers

  that, although he “screamed and yelled” at Gray, he did not “get

  physical” with her and did not defend himself. He said he made

  “the conscious decision not to hit her back.”

¶ 31   Epperson testified that he heard Gray yelling at Canciamilla,

  did not “hear any items being knocked over or anything like that” —

  “just the yelling” — and saw Gray with “her hands around

  [Canciamilla’s] throat.” Kretzmeier testified that she (1) only heard

  one person — Gray — yelling; (2) saw Gray follow Canciamilla

  outside the house “screaming and yelling”; (3) observed Canciamilla


                                    12
  crying; (4) had to use physical force to keep Gray away from

  Canciamilla because Gray “would just not stop”; (5) did not see any

  injuries on Gray; and (6) observed fresh scratch marks and bruises

  on Canciamilla’s neck and arms. Jones testified that she saw Gray

  strike Canciamilla and saw Gray’s right hand on his throat. Jones

  further said that Canciamilla did not try to defend himself.

¶ 32   It was the jury’s role to decide the credibility of the witnesses.

  “We do not reweigh the evidence or assess witnesses’ credibility on

  appeal because the jury is the sole judge of witness credibility.”

  People v. Griffiths, 

 (Colo. App. 2010). In light of

  the evidence presented at trial, the jury could have disbelieved

  Gray’s statement to Officer Steingart that Canciamilla had pushed

  her down stairs by her throat. Cf. People v. Kessler, 

, 

 (The “fact finder is not required to accept

  or reject a witness’s testimony in its entirety; it may believe all, part,

  or none of a witness’s testimony.”). Therefore, the jury could have

  reasonably found that the prosecution proved beyond a reasonable

  doubt that Gray did not reasonably believe Canciamilla was using

  or would imminently use unlawful physical force.




                                     13
¶ 33   Next, we consider whether the evidence was sufficient to

  support a finding beyond a reasonable doubt that Gray did not use

  a degree of force that she reasonably believed was necessary — the

  second prong of section 18-1-704(1). As noted above, the evidence

  supported a finding that Canciamilla did not push Gray down the

  basement stairs and that, although Canciamilla yelled at Gray, he

  did not use physical force against her or indicate that he was about

  to use physical force. Rather, the unrebutted evidence showed that

  Gray repeatedly struck Canciamilla; she choked him until he

  struggled to breathe, gasped for air, and gagged; and Canciamilla

  passively allowed Gray to hit him again and again. Given these

  facts, the jury could have reasonably concluded that the

  prosecution proved beyond a reasonable doubt that Gray used an

  unreasonable amount of physical force against Canciamilla.

¶ 34   Accordingly, we hold that the evidence, when viewed as a

  whole and in the light most favorable to the prosecution, was

  substantial and sufficient to support a conclusion by a reasonable

  mind that Gray did not act in self-defense.




                                   14
                   B.   Cross-Examination of Canciamilla
                        Regarding His Probationary Status
                 at the Time He Spoke with Responding Officers

                          1.   Additional Facts

¶ 35   Canciamilla told the police officers who responded to Jones’s

  911 call that:

       •     He had drunk seven or eight shots of whiskey that night.

       •     He had been hit and choked.

       •     The hitting and choking had made his throat hurt.

  Canciamilla also admitted to the officers that he began yelling at

  Gray before she raised her voice at him. But as we explain below,

  the jury did not hear what Canciamilla told the officers about the

  altercation.

¶ 36   At the time of the incident, Canciamilla was on probation for a

  misdemeanor conviction for driving under the influence. Under the

  terms of his probation, he was not permitted to consume alcohol or

  violate any state or federal law. He was no longer on probation

  when the trial began, however.

¶ 37   Before opening statements, defense counsel argued that,

  following Margerum, the court should permit her to cross-examine

  Canciamilla about his probationary status at the time he spoke


                                   15
  with the officers to demonstrate that he had a “bias[ed] motive for

  . . . making the police report and claiming essentially that it was an

  unprovoked attack.” Defense counsel asserted that Gray had the

  right to argue to the jury that Canciamilla had “a pretty strong bias

  and motive for him to fabricate essentially being a victim” in his

  discussions with the officers to avoid revocation of his probationary

  status and that the jury could therefore conclude he was the initial

  aggressor, and Gray had acted in self-defense. The court disagreed,

  noting that because Canciamilla was no longer on probation, he

  was not in a vulnerable position at the time of trial.

                         2.   Standard of Review

¶ 38   A defendant implicates the Confrontation Clauses in the

  United States and Colorado Constitutions, U.S. Const. amend VI;

  Colo. Const. art. II, § 16, by arguing that the trial court erroneously

  prohibited her counsel from cross-examining a witness regarding

  the witness’s probationary status. See Reynolds-Wynn, ¶ 32, 551

  P.3d at 1218. We review de novo a defendant’s contention that the

  trial court violated her rights under the Confrontation Clauses. Id.

  at ¶ 31, 551 P.3d at 1218. If there is no infringement on “the

  defendant’s rights secured by the Confrontation Clause” in the


                                    16
  United States Constitution, we review a trial court’s limitation on a

  defendant’s cross-examination for an abuse of discretion. Merritt v.

  People, 

 (Colo. 1992).

  3.    Under the Facts of the Case, Gray’s Counsel Did Not Have the
               Right to Cross-Examine Canciamilla Regarding
            His Probationary Status at the Time of the Incident

¶ 39   Gray asks us to extend Margerum’s reasoning by “allowing

  cross-examination of a witness’s probationary status at the time of

  the offense and relative to a witness’s statements before trial to

  cooperate with police,” even if the witness is no longer on probation

  at the time of trial. She quotes Margerum: “when a prosecution

  witness is on probation, the key question is whether there exists a

  ‘might have been influenced nexus’ between the witness’s

  probationary status and [his] potentially biased motive for

  testifying” and “that this nexus always exists when a prosecution

  witness is on probation in the same sovereign.” Margerum,

  ¶¶ 11-12, 454 P.3d at 239-40.

¶ 40   Criminal defendants have a constitutional right to confront the

  witnesses against them. Id. at ¶ 10, 454 P.3d at 239 (citing U.S.

  Const. amend VI; Colo. Const. art. II, § 16). “This right is primarily

  secured through cross-examination.” Id. “[W]hen a witness testifies


                                    17
  against a party, the party has a right to impeach that witness’s

  credibility.” Id. at ¶ 11, 454 P.3d at 239.

¶ 41   The cases that Gray cites in support of her argument that the

  trial court violated her Confrontation Clause rights all concerned

  witnesses who were involved with the criminal justice system when

  they testified against the defendant or who had previously obtained

  favorable treatment. See Delaware v. Van Arsdall, 

 (1986) (holding that the trial court violated the defendant’s

  rights under the Confrontation Clause of the United States

  Constitution by not permitting defense counsel to cross-examine a

  witness about the dismissal of his criminal charge after he agreed to

  speak with the prosecutor about the defendant’s alleged crime);

  Davis v. Alaska, 

 (1974) (concluding

  that the trial court erred by barring defense counsel from

  cross-examining a witness regarding his probationary status at the

  time of his pretrial identification of the defendant and at the time of

  trial); Margerum, ¶ 12, 454 P.3d at 240; Kinney, 

  (“[T]he trial court should allow broad cross-examination regarding

  the witness’s motive for testifying whenever the witness has a

  pending case and his or her ‘testimony against the defendant might


                                    18
  be influenced by a promise of, or hope or expectation of, immunity

  or leniency with respect to the pending charges against him, as a

  consideration for testifying against the defendant.’” (quoting King,

  

)); see also People v. Jones, 

  (Colo. App. 1998) (rejecting the defendant’s argument that evidence

  of the victim’s probationary status was admissible to show that her

  cooperation with, and statements to, police following the underlying

  incident were motivated by her “vulnerable status as a probationer,”

  because no evidence suggested the victim believed her probationary

  status was in jeopardy), overruled on other grounds by People v.

  Segovia, 

 (Colo. 2008).

¶ 42   In her appellate briefs, Gray does not direct us to any case

  holding that a trial court necessarily violates the defendant’s

  Confrontation Clause rights by barring defense counsel from

  cross-examining a prosecution witness regarding the witness’s

  probationary status at the time the witness reported the defendant’s

  alleged criminal conduct to law enforcement officers, even though

  the witness is no longer on probation at the time of trial. Likewise,

  at oral argument, Gray’s counsel could not cite a case holding that

  defendants have the right to cross-examine witnesses regarding


                                    19
  their probationary status when the witnesses are no longer on

  probation when trial begins. Nonetheless, Gray urges us to extend

  Margerum’s reasoning to such situations because a witness’s

  probationary status at the time of the offense “may have acted as

  motivation for the witness to cooperate with the police, especially

  when the witness could hold a belief they otherwise could be

  punished in relation to their probation or suspected of a crime.”

¶ 43   In Margerum, the court provided three reasons why “the

  defense must be permitted to question a prosecution’s witness

  about [his] probationary status when the witness is on probation in

  the same sovereign as the prosecution.” ¶ 12, 454 P.3d at 240.

¶ 44   First, the court explained that “a prosecution witness who is

  on probation in the same state court system in which [he] is

  testifying is in a vulnerable position.” Id. “That witness’s ability to

  remain on probation is potentially in jeopardy and the threat of

  probation revocation — whether real or merely perceived — creates

  an incentive for a witness to try to curry favor with the prosecution

  who can seek the revocation of that witness’s probation.” Id.

¶ 45   Similarly, “a prosecution witness who faces a pending charge

  in the same judicial district in which the prosecutor asks him to


                                     20
  testify is at least as vulnerable as a witness on probation.”

  Reynolds-Wynn, ¶ 34, 551 P.3d at 1218. “This is so because

  prosecutors have ‘broad discretion in the performance of [their]

  duties,’ including whether to consent to a deferred prosecution,

  whether and what type of plea deal to offer, the severity of the

  sentence to recommend, or even whether to dismiss the charge.”

  Id. (alteration in original) (quoting People v. Dist. Ct., 

,

  1024 (Colo. 1981)); see also Van Arsdall, 

 (“By thus

  cutting off all questioning” about the dismissal of the charge against

  the witness, which “a jury might reasonably have found furnished

  the witness a motive for favoring the prosecution in his testimony,

  the court’s ruling violated respondent’s rights secured by the

  Confrontation Clause.”).

¶ 46   Second, the court observed that “the desire to potentially curry

  favor with a prosecutor who can affect a witness’s probation creates

  at least a perception that the witness has a motive to provide

  favorable testimony for the prosecution.” Margerum, ¶ 12, 454 P.3d

  at 240.

¶ 47   Third, the court reiterated the well-established principle that

  “the witness’s credibility is always relevant, meaning parties should


                                     21
  be afforded wide latitude during cross-examination to discover any

  potential source of bias and, more importantly, to provide the jury

  with all relevant information needed to make a credibility

  determination.” Id.

¶ 48   The common thread running through the three reasons

  underlying Margerum is the possibility that the jury could perceive

  that the witness had an interest in currying favor with the

  prosecution to attempt to obtain a benefit that the prosecution had

  the power to confer, such as dismissal of a criminal charge, see Van

  Arsdall, 

; immunity or leniency regarding

  pending charges, see Reynolds-Wynn, ¶ 34, 551 P.3d at 1218;

  Kinney, 

; or favorable treatment while on

  probation, see Davis, 

; Margerum, ¶ 13, 454 P.3d

  at 240; Jones, 

. Under these circumstances, the

  jury could question the witness’s credibility if it believed the witness

  was motivated by a desire to please the prosecution. Significantly,

  the cases focus on how the witness’s trial testimony — not any

  statements that the witness may have previously provided to law

  enforcement officers — “might be influenced by a promise for, or




                                    22
  hope or expectation of, immunity or leniency.” Reynolds-Wynn,

  ¶ 36, 551 P.3d at 1218 (quoting Kinney, 

).

¶ 49   These reasons are premised on the assumption that the

  witness could have reasonably contemplated what benefits he could

  obtain in exchange for assisting the prosecution. But there is a

  weaker connection between a witness’s consideration of this type of

  possible agreement with prosecutors and the witness’s statements

  to law enforcement officers regarding a purported criminal act.

¶ 50   When police officers ask a witness on probation for

  information about a purported crime but the witness is no longer on

  probation at the time of trial, the witness may have no reasonable

  expectation that the prosecutors who possess the authority to seek

  the revocation of the witness’s probationary status would give the

  witness preferential treatment as a reward for the witnesses’ prior

  cooperation with the officers. At the time the witness spoke with

  the officers, the prosecutors likely knew nothing about the

  purported crime. This situation is many steps removed from a

  scenario in which the prosecution asks a witness on probation to

  testify at trial. Those steps include the police officer’s decision to

  arrest the defendant, the prosecution’s investigation into the


                                     23
  matter, its decision to bring charges against the defendant, and

  finally its selection of which witnesses to call at trial.

¶ 51   For these reasons, we decline to apply Margerum’s bright-line

  rule to witnesses who were on probation when they provided law

  enforcement officers with information regarding the offense for

  which the defendant was charged but who are no longer on

  probation at the time of trial. Thus, we hold that a defendant has

  no automatic right to cross-examine such a witness regarding that

  witness’s one-time probationary status.

¶ 52   Cases from other jurisdictions confirm this conclusion. For

  example, in State v. Rincker, the Nebraska Supreme Court held that

  defense counsel has no right to cross-examine a witness regarding

  his probationary status before trial. 

 (Neb.

  1988). If the witness is no longer on probation at the time of trial,

  he is “no longer vulnerable to the State’s reprisal” because “he had

  been punished, and the effects of his violation of probation had

  become final and could not be enhanced by State action.” 

 For

  the same reasons, the Wyoming Supreme Court concluded that the

  defense could not question a witness about her former status as a

  probationer. Salaz v. State, 

 (Wyo. 1977) (“[T]he


                                      24
  witness . . . was not on probation or parole. She was not subject to

  loss of freedom or other punishment due to the previous juvenile

  adjudication. She had no fear of revocation of probation or parole if

  she failed to cooperate with the police.”).

¶ 53   Our rejection of a bright-line rule that a defendant always has

  the right to cross-examine a witness about the witness’s earlier

  probationary status if the witness is no longer on probation by the

  time of trial does not mean a defendant can never ask about a

  witness’s prior probation. For this reason, we consider whether

  Gray had such a right under the facts of this case.

¶ 54   Nothing in the record suggests that Canciamilla considered his

  probationary status when he spoke with the officers. Moreover, the

  record does not show how soon after the incident Canciamilla

  satisfied the terms of his probation. If Canciamilla had completed

  his probation shortly after the incident, the prosecutors would have

  had no power to reward or punish him when they first reviewed his

  witness statement. Even if Gray had a constitutional right to

  cross-examine Canciamilla regarding his probationary status,

  defense counsel did not show that, at some point following

  Canciamilla’s statements to the officers, the prosecutors were


                                     25
  authorized to ask the court to revoke his probation. See Margerum,

  ¶ 12, 454 P.3d at 240 (noting that the “witness’s ability to remain

  on probation is potentially in jeopardy and the threat of probation

  revocation — whether real or merely perceived — creates an

  incentive for a witness to try to curry favor with the prosecution who

  can seek the revocation of that witness’s probation”) (emphasis

  added).

¶ 55   Moreover, following the attorneys’ colloquy with the court

  regarding Margerum, neither the prosecutor nor defense counsel

  asked Canciamilla — or any other witness — what Canciamilla told

  the investigating officers. Defense counsel’s cross-examinations of

  Canciamilla and Nicholas Romito, the only one of the responding

  officers who testified during the prosecution’s case, focused on the

  injuries Canciamilla reported to the officers.

¶ 56   Further, as the court noted, disclosing Canciamilla’s former

  probationary status to the jury would have created a risk that the

  jury would improperly hold the misdemeanor conviction against

  him in weighing his credibility. See Banek v. Thomas, 

 (Colo. App. 1984) (“Generally, credibility may not be

  impeached by evidence of prior misdemeanor convictions.”), aff’d,


                                    26
  

 (Colo. 1986). Gray does not contend that she had

  the right to cross-examine Canciamilla regarding his prior

  misdemeanor conviction to avoid misleading the jury. See People v.

  Mejia, 

 (Colo. 1975) (holding that the trial court

  properly allowed cross-examination of a witness regarding his

  earlier arrest for misdemeanor possession of marijuana after the

  witness testified on direct examination that, “except for

  drunkenness, he had never been arrested”).

¶ 57   The court possessed “wide latitude, insofar as the

  Confrontation Clause is concerned, to place reasonable limits on

  cross-examination based on concerns about, for example, . . .

  prejudice, confusion of the issues, . . . or interrogation which is

  repetitive or only marginally relevant.” Merritt, 

.

  The court placed such limits on the defense’s cross-examination of

  Canciamilla, but it did not preclude defense counsel from asking

  him about inconsistencies between his statements to the police

  officers and his trial testimony or about his intoxication at the time

  of the incident. We cannot say that the court erred by barring

  Gray’s attorney from bringing Canciamilla’s misdemeanor




                                     27
  conviction to the jury’s attention to avoid the risk that the jury

  would discount Canciamilla’s testimony because of that conviction.

¶ 58   Accordingly, we hold that the trial court did not err by

  declining to allow defense counsel to cross-examine Canciamilla

  regarding his probationary status when he spoke to the officers

  about the incident.

                             III.   Disposition

¶ 59   The judgment is affirmed.

       JUDGE JOHNSON and JUDGE MOULTRIE concur.




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