2016 COA 126
Colo. Ct. App.2016Background
- Michelle Hebert was charged with theft from an at-risk adult and later with related tax offenses after an elderly victim loaned her large sums and was not repaid.
- The victim, in hospice, was deposed at home via two-way video conference; the deposition was recorded and later played at trial because the victim died before trial.
- Hebert had appointed public defender counsel when the People sought the deposition; counsel objected to videoconference and requested time to prepare; the court delayed the deposition five weeks to allow preparation.
- After the deposition, Hebert retained private counsel, who later withdrew following additional charges; Hebert’s request for substitute appointed counsel was denied after the public defender concluded she was ineligible.
- Hebert represented herself at trial; the jury convicted her on all counts. On appeal, the court remanded for the district court to make findings on her indigency; the district court found she was ineligible for appointed counsel.
- The Court of Appeals addressed (1) the sufficiency of the indigency finding and (2) whether admitting the two-way video deposition violated Hebert’s right to a fair trial and Sixth Amendment confrontation rights, and affirmed the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hebert was entitled to appointed counsel after private counsel withdrew | Hebert was not indigent; public defender properly denied appointment | Hebert claimed separation from husband made her unable to access household income and indigent | District court did not abuse discretion: evidence showed joint income and no separation, so Hebert ineligible for appointed counsel |
| Whether admission of the video deposition denied a fair trial by leaving counsel insufficient time to prepare | Court provided a five-week delay before deposition, allowing preparation; counsel cross-examined at deposition | Deposition occurred too soon after court order and counsel lacked adequate preparation time | No unfairness: court’s delay remedied preparation concerns; counsel cross-examined at the deposition |
| Whether admission of the two-way video deposition violated the Sixth Amendment confrontation right | Video deposition was necessary given victim’s medical condition and preserved reliability | Video denied face-to-face confrontation required by Crawford/Craig | No violation: under Craig and Thomas, denial of face-to-face was necessary to protect health and testimony reliability was preserved (oath, contemporaneous cross-exam, jury could view demeanor); also met Crawford’s unavailability + prior opportunity to cross-examine |
| Whether state-constitutional confrontation claim required separate analysis | N/A | Hebert asserted perfunctory state-constitutional claim without developed argument | Court declined to perform independent state-constitutional analysis because claim was undeveloped |
Key Cases Cited
- Maryland v. Craig, 497 U.S. 836 (permitting non-face-to-face testimony when necessary and reliability is assured)
- Crawford v. Washington, 541 U.S. 36 (testimonial hearsay requires declarant unavailability and prior opportunity for cross-examination)
- Thomas v. People, 803 P.2d 144 (Colo. 1990) (Craig analysis applies to previously recorded video testimony)
- United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008) (two-way videoconference depositions admissible where safeguards preserve reliability)
- People v. Hill, 228 P.3d 171 (Colo. App. 2009) (court may decline to address undeveloped state-constitutional claims)