2017 COA 63
Colo. Ct. App.2017Background
- Victim (9) occasionally visited her mother and defendant Leroy Salas in Denver; she later testified Salas touched her over clothing, had her touch his penis, and told her not to tell. Reports to a family friend and law enforcement followed; forensic interviews conducted.
- Salas was tried by jury and convicted of sexual assault on a child by a person in a position of trust and pattern of abuse; sentencing followed and the court declared him a sexually violent predator (SVP) based on a probation SVP screening.
- At trial, grandmother testified and, in response to employment questioning, made a nonresponsive remark referencing “court proceedings on an alcohol problem,” prompting a defense mistrial motion denied by the court with a curative instruction.
- Defense sought to play a recorded interview of grandmother with a detective (containing prior statements) for impeachment; the court excluded the videotape after concluding grandmother had been confronted and had not denied the prior statements.
- At sentencing the court relied on the SVP assessment (SVPASI) and announced Salas met SVP criteria but did not make detailed factual findings applying the Gallegos definitions for the relationship element.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion for mistrial after grandmother’s comment about "court proceedings on an alcohol problem" | Comment was fleeting, ambiguous, and curative instruction cured any prejudice | Comment improperly referenced prior criminality and warranted mistrial | Denial affirmed: single, ambiguous, nonresponsive remark; curative instruction sufficient (nonconstitutional harmless-error review) |
| Admission/playback of grandmother’s videotaped interview for impeachment | Video unnecessary because defense had already confronted grandmother and she conceded/instead explained inconsistencies; exclusion within court's discretion | Video admissible under §16-10-201 to use prior inconsistent statements substantively; jury needed the "flavor" of the interview | Denial affirmed: trial counsel impeached grandmother on the record; tape would be cumulative and exclusion not an abuse of discretion |
| SVP designation and sufficiency of findings | Court relied on SVPASI and PSI; SVP designation reasonable based on assessment and facts in record | Court failed to make the specific statutory findings required and relied on screening instrument criteria precluded by Gallegos | SVP designation vacated and remanded: court must make specific factual findings applying Gallegos definitions to the relationship element |
| Standard of review / preservation for SVP challenge | SVP is civil in burden but is tied to criminal conviction; appellate review is available even if unpreserved | Salas argued plain error because he did not object below | Court reviews unpreserved SVP claim for plain error and proceeds to remand because error was obvious and substantial |
Key Cases Cited
- People v. Santana, 255 P.3d 1126 (Colo. 2011) (standard for mistrial and appellate review of trial-court discretion)
- People v. Abbott, 690 P.2d 1263 (Colo. 1984) (mistrial is drastic remedy; single unelicited remark may not require mistrial)
- People v. Goldsberry, 509 P.2d 801 (Colo. 1973) (pre-GRE authority on inadmissibility of unrelated criminal activity and mistrial when prejudicial references are made)
- People v. Lahr, 316 P.3d 74 (Colo. App. 2013) (ambiguous, fleeting references to criminality often do not require new trial)
- People v. Saiz, 32 P.3d 441 (Colo. 2001) (use of videotaped prior statements and interaction between §16-10-201 and CRE 613)
- People v. Gallegos, 307 P.3d 1096 (Colo. 2013) (definitions and limits for "established" or "promoted" relationship in SVP statute; courts must not rely on SOMB screening criteria)