People v. Smalley
2015 COA 140
Colo. Ct. App.2015Background
- In October 2011 police arrested Chester Smalley (a two‑time felon) after stopping him and his girlfriend; police later searched the girlfriend’s house and found ammunition, a shoulder holster, a tactical vest and knives.
- Recorded jail calls from Smalley (and calls to third parties) were introduced at trial; one recorded call from Jennifer Dressler said Smalley’s ex‑wife had taken "your piece" (slang for gun), and Smalley responded with relief.
- Smalley was charged with two counts of possession of a weapon by a previous offender (firearm and knife, charged for Oct. 25–28, 2011); jury acquitted on the knife count and convicted on the firearm count.
- At trial the court admitted Dressler’s statements on the recording for a nonhearsay purpose (to provide context for Smalley’s statements) and gave a limiting instruction; the prosecutor mentioned Dressler’s words in rebuttal closing, once arguably for their truth.
- The jury was given unfettered access to three recorded calls during deliberations after requesting them; the court provided a limiting instruction approved by defense counsel.
- On sentencing the court imposed an aggravated term; the court did not directly invite Smalley to speak personally at sentencing. The mittimus initially misidentified the felony class and parole term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dressler’s statements on recorded call | People: admitted as nonhearsay to provide context for defendant’s admissions and state of mind | Smalley: hearsay and Crawford/Confrontation violation because Dressler wasn’t cross‑examined | Court: admissible as nonhearsay; limiting instruction adequate; no confrontation problem |
| Prosecutor’s use of Dressler’s statements in closing | People: closing argued reasonable inferences from evidence; mostly focused on Smalley’s own statements | Smalley: prosecutor used Dressler’s words for their truth to establish timeline, impermissibly bolstering evidence | Court: most uses proper; one rebuttal statement improperly used for truth but was isolated and not plain error |
| Jury access to recorded calls during deliberations | People: recordings would aid the jury; no unfair prejudice given limiting instruction and procedures | Smalley: allowing unfettered access lets jury replay and overweight parts of tape; should be supervised or played in open court | Court: exercised DeBella/Frasco framework (waited for request, solicited input, found aids jury, provided limiting instruction); no abuse of discretion |
| Right to speak at sentencing and mittimus errors | People: sentence lawful; mittimus discrepancy corrected by court entry | Smalley: court failed to personally invite him to speak; mittimus misstates felony class and parole term | Court: failure to personally invite defendant was plain error requiring resentencing; mittimus must be corrected to class 6 felony with 12‑month mandatory parole |
Key Cases Cited
- DeBella v. People, 233 P.3d 664 (Colo. 2010) (trial courts must assess whether an exhibit will aid the jury and whether access will unfairly prejudice a party)
- Frasco v. People, 165 P.3d 701 (Colo. 2007) (factors and procedures for providing juries access to testimonial exhibits)
- People v. McKeel, 246 P.3d 638 (Colo. 2010) (presumption that juries follow limiting instructions)
- People v. Arnold, 826 P.2d 365 (Colo. App. 1991) (statements by others in a recorded conversation may be nonhearsay when offered only to place defendant’s statements in context)
- People v. Gable, 647 P.2d 246 (Colo. App. 1982) (recorded conversations admitted as nonhearsay to make defendant’s statements intelligible)
- People v. Robinson, 226 P.3d 1145 (Colo. App. 2009) (Confrontation Clause not implicated by nonhearsay statements)
- Green v. United States, 365 U.S. 301 (1961) (sentencing court must unambiguously invite defendant to speak personally)