Peo v. Schwenk

22CA0372 Peo v Schwenk 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0372

El Paso County District Court No. 20CR5016

Honorable Eric Bentley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Caleb Schwenk,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE FOX

Grove and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 22, 2024

Philip J. Weiser, Attorney General, Alejandro Sorg, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sean James Lacefield, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Daniel Caleb Schwenk, appeals the judgment of

conviction entered on jury verdicts finding him guilty of first degree

assault and menacing based on evidence that he shot the victim,

G.P. We affirm.

I. Background

¶ 2 Evidence at trial revealed that a shooting occurred in a hotel

known for criminal activity. Schwenk and the victim — both hotel

regulars — had a contentious history, and by all accounts did not

get along. Schwenk apparently “robbed” the victim, and the victim

wanted his “stuff” back. The victim had apparently hit Schwenk on

the head with a gun at some point before the shooting. And shortly

before the incident, Schwenk texted a friend that he feared he might

get shot.

¶ 3 On the day in question, hotel surveillance footage showed

Schwenk ascending a hotel staircase carrying what appeared to be

a long gun concealed by a covering. A witness who knew Schwenk

testified that he knocked on her second-story hotel room door while

holding a shotgun. She did not answer. The witness testified that

she watched from her hotel door peephole as Schwenk turned down

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the hall and walked away. As he did so, the victim emerged from

another room into the hallway, and the pair began arguing. The

witness described the victim verbally “picking on” Schwenk, though

she never saw the victim “pull a gun.”

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But she could not say for

certain whether the victim was armed, and the pair moved out of

her sightline right before the shooting.

¶ 4 Surveillance footage depicted Schwenk, at the top of a

staircase landing, firing a shotgun at a target outside the frame.

Surveillance Footage View

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The victim was accompanied by a friend who apparently grabbed

an AR-15 style rifle from the victim’s room immediately after the

incident.

3

Schwenk then ran down the staircase — past a ground-level exit

door on the staircase’s midpoint landing — to the hotel’s lower level.

Meanwhile, bystanders ran to the victim, who suffered a gunshot

wound to the chest and arm.

¶ 5 Schwenk was captured on video fleeing the scene; officers

apprehended him at another location. A shotgun was later

recovered from a storage room on the hotel’s lower level.

¶ 6 The prosecution charged Schwenk with attempted second

degree murder, first degree assault, second degree assault,

menacing, and possession of a weapon by a previous offender

(POWPO). The prosecution later added habitual criminal counts

based on Schwenk’s four prior felony convictions. The POWPO

charge was bifurcated, and the prosecution dismissed the second

degree assault charge during trial. Accordingly, the jury considered

only the attempted second degree murder, first degree assault, and

menacing charges.

¶ 7 The prosecution theorized that Schwenk shot the victim

because he wanted to “make a point” and was tired of being

“pushed around.” Schwenk asserted self-defense.

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¶ 8 The jury could not reach a verdict on the attempted murder

count, which the prosecution then dismissed. The jury found

Schwenk guilty of first degree assault and menacing. It also found

several crime of violence sentence enhancers proven, including that

Schwenk used a deadly weapon and that the assault resulted in

serious bodily injury.

¶ 9 After a bifurcated hearing, the court found that the

prosecution proved the habitual criminal counts beyond a

reasonable doubt. Concluding that the habitual sentence for the

assault conviction would be constitutionally disproportionate, the

court sentenced Schwenk to twenty years in the Department of

Corrections’ custody. The court imposed an initial award of

restitution for $71,186.21 plus expenses for the victim’s future

treatment.

¶ 10 On appeal, Schwenk asserts two trial errors and appeals the

district court’s restitution order.

II. Trial Errors

¶ 11 Schwenk claims that two errors violated his right to a fair trial:

(1) the prosecutor committed reversible misconduct during voir dire

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and closing arguments; and (2) the court erroneously excluded

impeachment evidence against the victim, who did not testify but

was a hearsay declarant. While we agree that several errors

occurred, none prejudiced Schwenk such that reversal is required.

A. Prosecutorial Misconduct

¶ 12 Schwenk first claims that the prosecutor committed reversible

misconduct by indoctrinating the jury, obtaining commitments to

convict, using analogies to describe the burden of proof, and

misstating the law of self-defense. While we do not condone several

of the prosecutor’s challenged actions, we conclude that none of the

claims amounted to reversible misconduct.

1. Standard of Review

¶ 13 “While a prosecutor can use every legitimate means to bring

about a just conviction, [he] has a duty to avoid using improper

methods designed to obtain an unjust result.” Domingo-Gomez v.

People, 125 P.3d 1043, 1048 (Colo. 2005). We engage in a two-step

analysis when reviewing claims of prosecutorial misconduct. Wend

v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we determine

whether the prosecutor’s conduct was improper based on the

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totality of the circumstances. Id. Second, we decide whether such

actions warrant reversal under the proper standard of review. Id.

¶ 14 We reverse preserved claims of constitutional dimension

unless the error was harmless beyond a reasonable doubt. Hagos

v. People, 2012 CO 63, ¶ 11. We review preserved

nonconstitutional trial errors for harmless error. Id. at ¶ 12.

¶ 15 We review unpreserved claims of prosecutorial misconduct for

plain error, id. at ¶ 14, which, to warrant reversal, must be obvious,

substantial, and so undermine the fundamental fairness of the trial

as to cast serious doubt on the reliability of the judgment of

conviction, People v. Smith, 2018 CO 33, ¶ 24. An error is obvious

if it contravenes a clear statutory command, a well-settled legal

principle, or established Colorado case law. People v. Crabtree,

2024 CO 40M, ¶ 42. Whether an error is obvious is measured at

the time the error is made. Id. at ¶¶ 8, 72.

¶ 16 “Prosecutorial misconduct in closing argument rarely

constitutes plain error.” People v. Smalley, 2015 COA 140, ¶ 37;

see also Hagos, ¶ 23 (reversals on plain error review “must be rare

to maintain adequate motivation among trial participants to seek a

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fair and accurate trial the first time”). “Only prosecutorial

misconduct that is ‘flagrantly, glaringly, or tremendously improper’

warrants reversal under the plain error test.” People v. Duncan,

2023 COA 122, ¶ 33 (quoting Hagos, ¶ 14). Thus, even if improper,

a prosecutor’s comments during closing argument do not

necessarily warrant reversal if the combined prejudicial impact of

the statements does not cast serious doubt on the reliability of the

conviction. People v. Nardine, 2016 COA 85, ¶ 66.

2. Indoctrination and Precommitment

¶ 17 Schwenk first claims that the prosecutor committed reversible

misconduct by indoctrinating the jury with the prosecution’s theory

of the case and obtaining commitments to convict. We disagree.

¶ 18 During voir dire, the prosecutor addressed the theme of

sympathetic and unsympathetic victims. He first used an example

of Peyton Manning — a widely respected public figure and former

Denver Broncos quarterback — being punched in the face. He then

contrasted that example with an obnoxious fan of the Las Vegas

Raiders — a Denver Broncos rival — being punched in the face.

The prosecutor asked questions about whether the Raiders fan was

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a victim of a crime, even if the jury did not “feel bad” for him. The

prosecutor continued with the “extreme example” of a registered sex

offender and posed a similar question.

¶ 19 The prosecutor then probed the jurors’ opinions of victims who

choose not to testify. He modified the Raiders fan hypothetical,

proposing that the entire assault was captured on video and then

subsequently taken to trial. The prosecutor asked, under those

circumstances, “Who would you expect to come in and testify about

this assault that happened?” After soliciting a few responses, the

prosecutor asked,

I’ve got the video footage that shows this whole

thing transpired. Everything that you would

want to see about. And let’s say the guy [who]

got punched in the face didn’t testify. Would

you still be able to convict him based on all the

other evidence if it convinced you beyond a

reasonable doubt that he was indeed punched

in the face?

He then reversed the question, asking whether someone would be

unable to convict unless the victim testified.

¶ 20 During rebuttal closing argument, the prosecutor tied the

Raiders hypothetical to the victim in this case, acknowledging that

he was not particularly sympathetic:

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And I’m not going to get up here and tell you

that [the victim] is a good guy, that [he] is a

guy you should feel bad for, that [he] is

anything other than that Raiders fan we were

talking about during jury selection. But you

know what? He’s still a human being. He still

is entitled to the protections of our laws[.] And

that does not matter who you are or where you

come from or what you’ve done. He is still the

victim of [Schwenk’s conduct].

¶ 21 Defense counsel never objected. Because the claimed error is

unpreserved, we reverse only for plain error. See Hagos, ¶ 14.

¶ 22 Voir dire allows counsel to inquire whether potential jurors

hold any biases that would prevent the defendant from receiving a

fair trial. People v. Wilson, 2013 COA 75, ¶ 12. Crim. P. 24(a)(3)

grants trial courts discretion to limit improper voir dire. Trial

courts may limit voir dire that instructs the jurors on a party’s

theory of the case. See Wilson, ¶ 13; see also People v. Shockey,

2023 COA 121, ¶ 71 (Richman, J., concurring in part and

dissenting in part).

¶ 23 We conclude that any error in the trial court’s failure to

intervene in the prosecutor’s questioning was not plain because,

even if improper, it did not amount to an obvious error. See People

v. Vigil, 251 P.3d 442, 447 (Colo. App. 2010) (under the plain error

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standard, an appellate court need not decide whether the trial court

actually erred if the alleged error was not obvious). While settled

Colorado case law at the time of trial prohibited voir dire that

teaches the jury a party’s theory of the case, this was not obviously

one of those circumstances. Schwenk argues that the Raiders

hypothetical taught the jurors the prosecution’s theory because it

had commonalities with the case, including an assault and an

unsympathetic victim. But it was clear, in context, that the

prosecutor was trying to identify whether the jurors could decide

the case based on the facts and the law before them, and not on

whether the victim was sympathetic or unsympathetic — an aim

that aligns with the very purpose of voir dire. Wilson, ¶ 12.

¶ 24 Schwenk’s argument that the hypothetical precommitted the

jurors to a guilty verdict is equally unavailing. Even if settled

Colorado authority prohibited such “precommitment” questions at

the time of trial, we do not read the prosecutor’s questions, in

context, as doing so. Instead, the prosecutor created a hypothetical

assault captured on film to determine if any of the jurors held a

bias against nontestifying victims. See id. And the prosecutor

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tempered the hypothetical with the caveat that all the other

evidence presented would have to convince the jurors of guilt

beyond a reasonable doubt. In that way, the prosecutor’s question

— while perhaps inartful — is distinguishable from one requiring

the jurors to commit to a guilty verdict before hearing the evidence.

3. Burden of Proof Analogies

¶ 25 Next, Schwenk contends that the prosecutor committed

reversible misconduct during voir dire by using analogies that

“trivialized” the burden of proof.

¶ 26 The prosecutor told the jury that he would be using the same

Raiders fan example to discuss the burden of proof. He asked a

juror, hypothetically, if the prosecution presented video evidence

and testimony from the victim, but the “defendant” took the stand

and argued that aliens were controlling his brain, whether that

would create a reasonable doubt. Defense counsel objected that the

analogy trivialized the burden of proof. The court ruled, “I will allow

the alien example.”

¶ 27 The prosecutor then invoked the now notorious home

purchase analogy. See Tibbels v. People, 2022 CO 1, ¶¶ 50-53. He

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described the sale of a perfect house in a great neighborhood in the

right price range, and whether a juror would consider that purchase

a matter of importance to himself. He then asked whether a wine

stain on the carpet or a crack in the kitchen window would cause

the jurors to hesitate in purchasing the home. Predictably, the

jurors answered that they would not hesitate to purchase a perfect

house with either of those cosmetic problems. The prosecutor then

modified the analogy, asking whether a juror would hesitate in

buying a home that had black mold “all over” behind the bathroom

wall. The juror answered that black mold would cause her to

hesitate because it “reveals the potential of a more significant

problem.” Defense counsel did not object to the home purchase

analogy.

¶ 28 Because defense counsel objected to the first analogy, we

assume without deciding that the alleged error implicates

Schwenk’s due process rights and apply the constitutional harmless

error standard of reversal. See id. at ¶ 23; see also Hagos, ¶ 11.

Because defense counsel did not object to the second analogy, we

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conclude that the claim of error is unpreserved and review for plain

error. See Hagos, ¶ 14.

¶ 29 Analogies that attempt to illustrate what “beyond a reasonable

doubt” means are “perilous and unhelpful.” People v. Vialpando,

2022 CO 28, ¶ 41; see also Tibbels, ¶ 25; People v. Sanders, 2022

COA 47, ¶ 48; People v. Camarigg, 2017 COA 115M, ¶¶ 44-47. By

now, trial courts and prosecutors should all be on notice that using

these illustrations is fraught.

¶ 30 But in this case, we perceive no reversible error. Contrary to

Schwenk’s view, the prosecutor’s comments (while certainly inartful

and at times confusing) were not on par with the trial court’s

problematic remarks in Tibbels. Importantly, the prosecutor did

not occupy the same role as the court (i.e., setting forth the law the

jury must apply). The trial court emphasized to the jury that,

“[w]hile the attorneys may comment on some of the rules of law, you

must follow the instructions I give you.” The court gave the jury the

correct definition of “reasonable doubt,” and it did not undermine

those definitions, unlike in Tibbels, ¶ 9. We presume the jury

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followed those instructions. See Bondsteel v. People, 2019 CO 26,

¶ 62.

¶ 31 Further, the prosecutor’s challenged statements were relatively

brief in the context of the entire trial; in fact, they were made only

during voir dire. People v. Cevallos-Acosta, 140 P.3d 116, 124

(Colo. App. 2005) (finding no error where the prosecutor’s

discussion of reasonable doubt was brief). The prosecutor did not

invoke the alien or home purchase analogy during closing

argument. See Vialpando, ¶ 41 (concluding that a prosecutor’s use

of a burden of proof analogy did not prejudice the defendant where

the reference was isolated to voir dire).

¶ 32 For these reasons, we conclude that any error in the

prosecutor’s use of the alien analogy was harmless beyond a

reasonable doubt.

¶ 33 In addition to those identified above, two additional

considerations inform our conclusion that no plain error occurred

as to the home purchase analogy. First, the prosecutor’s use of this

analogy was not obvious misconduct. We measure the obviousness

of an error at the time it occurred. Crabtree, ¶¶ 8, 72. At the time

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of Schwenk’s trial, divisions of this court disagreed about whether

the court’s use of analogies to illustrate the beyond a reasonable

doubt standard lowered the prosecution’s burden of proof.

Compare People v. Knobee, 2020 COA 7, ¶ 34 (concluding that a

court’s analogy lowered prosecution’s burden of proof) (cert. granted

June 29, 2020) (cert. vacated and case dismissed due to

respondent’s death Sept. 9, 2021), with People v. Tibbels, 2019 COA

175, ¶ 35 (concluding that a court’s analogy did not lower

prosecution’s burden of proof), rev’d, 2022 CO 1, ¶ 53, and People

v. Avila, 2019 COA 145, ¶ 46 (same), overruled by Tibbels, 2022 CO

1, ¶ 53. The Colorado Supreme Court later settled the question of

whether a trial court’s use of illustrations lowers the prosecution’s

burden of proof in Tibbels, which was decided after Schwenk’s

August 2021 trial. But at the time of Schwenk’s trial, no published

Colorado case established that a prosecutor’s use of an analogy to

describe the burden of proof constituted reversible misconduct.

¶ 34 Second, defense counsel’s failure to object to the comments

demonstrates counsel’s belief that the live arguments, despite their

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appearance in a cold record, were not overly damaging. See

Domingo-Gomez, 125 P.3d at 1054.

4. Misstating the Law

¶ 35 Schwenk next argues that the prosecutor committed reversible

misconduct during rebuttal closing argument by inaccurately

representing the duty (or lack thereof) to retreat. While we agree

with Schwenk that the prosecutor erred, and the error was obvious,

we conclude that it was not substantial.

¶ 36 A person may use physical force to defend himself “from

what he reasonably believes to be the use or imminent use of

unlawful physical force,” and he may use “a degree of force which

he reasonably believes to be necessary for that purpose.” § 18-1-

704(1), C.R.S. 2023. Only initial aggressors have a duty to retreat

before using force in self-defense. People v. Monroe, 2020 CO 67,

¶ 19. Prosecutors may not argue that a defendant is barred from

acting in self-defense unless he first retreats from the encounter.

Id. at ¶ 20. Similarly, prosecutors cannot argue that a defendant’s

failure to retreat undermines the reasonableness of his use of force.

Id. at ¶ 29. Such arguments pose a significant risk of confusing the

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jury. Id. at ¶ 32 (citing CRE 403). However, prosecutors may assert

these arguments when related to the defendant’s status as an initial

aggressor. See id. at ¶ 28; see also People v. Martinez, 224 P.3d

1026, 1033 (Colo. App. 2009).

¶ 37 During rebuttal closing argument, the prosecutor argued that

bringing a weapon to a hotel where the victim lived undermined

Schwenk’s claim of self-defense. The prosecutor continued, “But

it’s more than that. And indeed the Defendant’s own actions bear

this out that this is not a case of self-defense.” The prosecutor then

replayed the surveillance footage for the jury before saying,

Now, what else do we see right here? There’s a

door (indicated). There’s an exit. There’s a

means of escape. [The victim] is in this

hallway (indicated). [The victim], unarmed,

making no threats, is in a separate hallway . . .

. There’s a different door that separates that.

If . . . Schwenk is in any form of danger, does

he engage [the victim]? No. He only does that

if he’s intending to cause serious bodily injury

or death. He doesn’t make a movement

towards this open door. Moreover, when he

fires the shot because he’s supposedly so

scared for his own safety, does he hit the first

entrance? No. What does he do? He

descends the stairs. He hides the

shotgun . . . .

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Defense counsel did not object. Schwenk now argues that the

prosecutor improperly suggested that Schwenk had a duty to

retreat.

¶ 38 Prosecutors may not misstate the law. Monroe, ¶ 16. When a

court, upon proper objection, fails to correct the prosecutor’s

misstatement of law, the court improperly permits the jury to adopt

the prosecutor’s incorrect version of the law. Id. But here, where

defense counsel did not object, we review for plain error. See

Hagos, ¶ 14.

¶ 39 We conclude that the prosecutor misstated the law and the

error was sufficiently obvious that the “trial judge should [have

been] able to avoid it without benefit of objection.” Crabtree, ¶ 42

(citation omitted). In Monroe, ¶ 29, a case announced over a year

before Schwenk’s trial, the Colorado Supreme Court unequivocally

prohibited prosecutors from using a defendant’s failure to retreat to

argue that his use of force was unreasonable. The prosecutor’s

suggestion that Schwenk engaged the victim instead of leaving the

encounter reflected on whether he reasonably perceived a threat or

used a reasonable degree of force to defend himself. This is

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precisely the type of improper argument the Monroe court

categorically prohibited.

¶ 40 While we recognize that Schwenk’s status as an initial

aggressor was contested, and that the jury was given an initial

aggressor instruction, we do not believe that the challenged

argument, in context, had anything to do with that instruction. The

prosecutor did not preface the argument by saying Schwenk

initiated the confrontation, and thus had to retreat before using

force. Instead, the prosecutor introduced the argument as an

additional reason why Schwenk’s conduct disqualified him from

asserting self-defense. The prosecutor argued that if Schwenk

perceived danger, he would have used the exit to leave the

confrontation. The only inference the jury could have drawn from

that argument was that if Schwenk’s retreat was “possible but not

pursued,” then Schwenk must not have “actually perceived a

threat,” conditioning the reasonableness of the use of force on

flight. Id. at ¶ 30.

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¶ 41 Because well-settled Colorado case law prohibited the

prosecutor’s conduct at the time of trial, the error was obvious. The

court should have recognized the error and intervened.

¶ 42 Nevertheless, we conclude that the error was not substantial

and did not so undermine the fundamental fairness of the trial as to

cast serious doubt on the reliability of Schwenk’s conviction. Smith,

¶ 24.

¶ 43 First, the misstatement of law was brief and isolated. The

prosecutor made the misstatement once during rebuttal closing.

The improper portion of argument spanned about ten lines of text

in the context of a closing argument that spanned fourteen pages.

See People v. Cuellar, 2023 COA 20, ¶¶ 75, 83. True, the

misstatement was one of the last things the jury heard before it

entered into deliberations. See Domingo-Gomez, 125 P.3d at 1052

(“Rebuttal closing is the last thing a juror hears from counsel before

deliberating, and it is therefore foremost in their thoughts.”). But

the prosecutor addressed two other substantive topics in detail after

the misstatement: Schwenk’s flight from the hotel and his

subsequent incriminating statements recorded on jail calls.

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¶ 44 This case is distinguishable from Monroe in that the

prosecutor’s arguments there were numerous and more directly

related to the defendant’s failure to retreat than the arguments in

this case. Specifically, the prosecutor in Monroe referred to a duty

to retreat five times during closing argument, each time directing

the jury to consider the defendant’s failure to retreat as relevant to

whether she reasonably believed she needed to act in self-defense.

Monroe, ¶¶ 36-37. Here, the prosecutor only raised this argument

once over the course of the entire trial and did not expressly

reference a duty to retreat at all. See People v. Liebler, 2022 COA

21, ¶ 51 (whether prosecutorial misconduct was repeated is

relevant to whether reversal is warranted).

¶ 45 Further, the trial court properly instructed the jury on the law

of self-defense, namely, that a person is authorized to use physical

force without first retreating when the conditions of self-defense are

met. The prosecutor repeated that correct statement of law during

his initial closing argument. The court also instructed the jury that

“[w]hile the attorneys may comment on some of the rules of law, you

must follow the instructions I give you,” and that “[y]our decision

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must be made by applying the rules of law that I give you to the

evidence presented at trial.” We presume the jury understood and

followed these instructions. See Bondsteel, ¶ 62.

¶ 46 In contrast, the Monroe court repeatedly overruled objections

to the prosecutor’s duty-to-retreat arguments and instructed the

jury that it could consider the defendant’s failure to retreat as

relevant to whether she actually believed she faced an imminent

use of unlawful force. Monroe, ¶¶ 9-11, 37. As a result of the

court’s actions and instruction, there was “a significant risk that

the jury convicted [the defendant] because it erroneously believed

that her failure to retreat necessarily negated the reasonableness of

her use of force.” Id. at ¶ 37. Such a risk was not present here,

where the court did not indicate to the jury — through overruled

objections or instructions to the jury — that Schwenk had a duty to

retreat. Instead, the court was presented with no objection on the

issue, and it correctly instructed the jury that Schwenk had no duty

to retreat.

¶ 47 In conclusion, Schwenk is correct that at least some of the

prosecutor’s challenged conduct was improper. But none of the

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alleged errors so undermined the fundamental fairness of the trial

as to cast serious doubt on the reliability of the conviction. See

People v. Walker, 2022 COA 15, ¶¶ 28, 49.

B. Impeachment

¶ 48 Schwenk next claims that the trial court erred by failing to

take judicial notice of the victim’s felony convictions offered to

impeach him because, though he did not testify, he made out-of-

court statements that were admitted during trial through an

officer’s body camera footage. While the People admit that the trial

court erred, they argue that any error was not reversible. We agree.

1. Additional Background

¶ 49 A body camera documented the responding officer’s aid to the

victim. The prosecution offered her body camera footage into

evidence, to which the defense objected on relevance and CRE 403

grounds. The trial court overruled the objection and admitted the

exhibit.

¶ 50 The footage depicted the victim lying on the ground,

anguishing in pain. During the video, he made the following

statements:

• “I’m going to die” and “I’m dying”;

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• “I don’t want to die”;

• “Just kill me”; and

• “I want my girl.”

2

The victim also provided some basic identifying information to the

paramedics, and when a bystander said that the firearm that

Schwenk, (identified as “Smiley”), used was a “.22,” the victim cried

out, “Shotgun!” Later during trial, a witness testified that the victim

said, “Don’t do it, don’t do it” immediately before he was shot.

¶ 51 During the defense’s case in chief, counsel asked the trial

court to take judicial notice of the fact that the victim was then

incarcerated; the prosecution did not object. Outside the jury’s

presence, defense counsel further requested that the court take

judicial notice of the victim’s felony convictions, offered as

impeachment evidence based on his status as a hearsay declarant.

The court asked defense counsel to provide legal authority to

support the request, and while both parties provided pertinent

2

In fairness to Schwenk, we recount each of the victim’s statements

here, though we recognize that several were probably not hearsay

within the meaning of CRE 806 because they were not offered for

the truth of the matter asserted.

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arguments, neither supplied the court with the relevant authority

allowing impeachment of a hearsay declarant. After some

discussion about whether the statements constituted nonhearsay

or, alternatively, hearsay falling under an exception to the general

ban, the court noted that the victim only made statements as to

undisputed facts. The court then denied the defense’s request.

2. Preservation and Standard of Review

¶ 52 We review a trial court’s rulings on the admissibility of

evidence for an abuse of discretion. People v. Brown, 2022 COA 19,

¶ 57. A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or where it applies an incorrect

legal standard. People v. Rodriguez, 2022 COA 98, ¶ 12. We review

preserved evidentiary errors for harmless error and unpreserved

claims for plain error. Hagos, ¶¶ 12, 14.

¶ 53 Defense counsel asked the trial court to take judicial notice of

the victim’s felony convictions, asserting that the credibility of

hearsay declarants can be impeached. While counsel did not cite

CRE 806, section 13-90-101, C.R.S. 2023, or any binding authority

applying those provisions, we conclude that the evidentiary

26

argument is preserved. See Martinez v. People, 2015 CO 16, ¶ 14

(we do not require talismanic language to preserve an argument for

appeal).

¶ 54 For the first time on appeal, Schwenk asserts that this error

violated his rights under the Confrontation Clauses of the United

States and Colorado constitutions. However, on these facts,

defense counsel’s unsupported assertion that the credibility of

hearsay declarants can be attacked was insufficient to preserve

Schwenk’s confrontation argument. See id. at ¶¶ 14-15 (a party

must present the trial court with an adequate opportunity to make

findings of fact and conclusions of law on the issue and objections

that fail to draw the court’s attention to the asserted error are

insufficient). Thus, we will apply plain error review to Schwenk’s

constitutional claim.

3

3. Application

¶ 55 The Confrontation Clause guarantees a criminal defendant the

right “to be confronted with the witnesses against him.” U.S. Const.

3

Though we apply plain error review to Schwenk’s confrontation

argument, for the reasons discussed below, his claim would not

result in reversible error even if preserved.

27

amend. VI; see also Colo. Const. art. II, § 16; Campbell v. People,

2020 CO 49, ¶ 22. CRE 806 provides that when a hearsay

statement is admitted into evidence, the declarant’s credibility may

be attacked. The People admit that the trial court erred by

declining to take judicial notice of the victim’s felony convictions.

Thus, we must determine whether the error was reversible and

conclude that it was not.

¶ 56 Reversal is not warranted here under any standard because

the claimed error did not prejudice Schwenk. The victim’s

statements were, to put it mildly, of limited probative value. Aside

from contemplating his own death and asking for his “girl,” the

victim merely asked Schwenk not to shoot him (“Don’t do it”) and

corrected a witness’s misidentification of the type of gun that

Schwenk used to shoot him (“Shotgun!”).

¶ 57 In this self-defense case, the parties did not dispute that

Schwenk shot the victim with a shotgun. Indeed, surveillance

footage documented him firing a shotgun in the victim’s direction.

Thus, the victim’s credibility on this point was not at issue, and the

jurors did not have to believe anything the victim said in order to

28

answer the question they were called to resolve: whether Schwenk

acted in self-defense.

¶ 58 We are ultimately unpersuaded by Schwenk’s theory of harm

that the jurors, if properly instructed on the victim’s felony

convictions, could have used that knowledge to discredit the

victim’s command, “don’t do it,” and view it as a dishonest attempt

to misrepresent the circumstances leading up to the shooting to

anyone who might be listening. Even if the evidence had shown

that the victim was armed and pointed a gun at Schwenk, that

circumstance could coexist with the victim’s command that

Schwenk not shoot.

III. Restitution

¶ 59 Finally, Schwenk argues that the restitution order must be

vacated because the prosecution’s request was untimely.

¶ 60 The restitution statute provides that “[e]very order of

conviction of a felony [or] misdemeanor . . . shall include

consideration of restitution.” § 18-1.3-603(1), C.R.S. 2023. The

statute then identifies four types of restitution orders trial courts

may enter. People v. Weeks, 2021 CO 75, ¶ 3. One of these options

29

— found in subsection (1)(b) of the statute — is an “order that the

defendant is obligated to pay restitution, but that the specific

amount of restitution shall be determined within the ninety-one

days immediately following the order of conviction, unless good

cause is shown for extending the time period by which the

restitution amount shall be determined.” § 18-1.3-603(1)(b).

¶ 61 At Schwenk’s January 18 sentencing, the court ordered

restitution in an amount to be determined within ninety-one days.

The court instructed the prosecution to submit a request within

forty-two days, giving the defense twenty-one days to object. The

prosecution filed a draft order containing the restitution amount on

February 28. The court adopted the order on March 22 —

approximately sixty-three days after Schwenk’s sentencing. Thus,

whether the court had authority to enter the restitution order is not

at issue here.

¶ 62 Instead, Schwenk asserts that the prosecution failed to comply

with its statutorily imposed obligations, requiring vacatur of the

order. “[T]he restitution statute requires the prosecution to exercise

reasonable diligence to determine the amount of restitution and

30

present it to the court at or before the sentencing hearing.” People

v. Brassill, 2024 COA 19, ¶ 30; see also § 18-1.3-603(2)(a). But a

prosecutor’s failure to comply with that requirement does not

deprive the court of authority to impose restitution. Brassill, ¶¶ 56-

61. District courts have broad discretion in managing their dockets

through scheduling orders. See id. at ¶¶ 17, 52.

¶ 63 While the prosecution failed to provide restitution information

at sentencing, the court established a reasonable plan allowing

each party to weigh in on the issue before it lost authority to impose

restitution. It ordered restitution, according to that plan, well

before the deadline passed. And courts and prosecutors alike are

now on notice of a prosecutor’s duty to use diligent efforts to

present restitution information at sentencing. Id. at ¶ 63. Thus,

the court acted within its discretion by awarding restitution

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notwithstanding the prosecutor’s failure to provide pertinent

restitution information at sentencing.

4

IV. Disposition

¶ 64 The judgment is affirmed.

JUDGE GROVE and JUDGE SULLIVAN concur.

4

Because the division’s holding in People v. Brassill, 2024 COA 19,

is dispositive, we need not address the People’s contention that

Schwenk waived his objection to the restitution order. And to the

extent that the People failed to raise a harmless error argument on

appeal, we do not resolve the issue on that basis because we may

affirm on any ground supported by the record. People v. Aarness,

150 P.3d 1271, 1277 (Colo. 2006).

Case Details

Case Name: Peo v. Schwenk

Court Name: Colorado Court of Appeals

Date Published: Aug 22, 2024

Docket Number: 22CA0372

Court Abbreviation: Colo. Ct. App.