Opinion by
{1 Dеfendant, Willie Clark, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of murder (extreme indifference), one count of murder (after deliberation), sixteen counts of attempted first degree murder, two counts of second degree assault, sixteen counts of violent erime, and one count of possession of a weapon by a previous offender., He also appeals the trial court's denial of his motion for new trial. We affirm in part, reverse in part, and remand with directions.
I. Background
T2 Fifteen gunshots rang out through the streets of downtown Denver in 'the early morning hours of New Year's Day 2007. Those gunshots, aimed at an oversized limousine from a white Chevrolet Tahoe, left Dar-
¶ 3 The prosecutlon s evidence showed that the victims had celebrated New Year's Eve in the VIP section of a night club in the vicinity of the Golden Triangle area of downtown Denver. Defendant and his friend, Daniel Harris, were also in the VIP section that evening. Shortly before the clock struck midnight, someone opened a bottle of champagne and began spraying it throughout the VIP section. After being sprayed, defendant and Harris started a verbal altercation with the victims, and Harris began shouting "Eastside" and "Tre Tre. Crips." Defendant and Harris were then removed from the VIP section.
14 Approximately two hours later the club closed and the partygoers streamed into the street,. There, some members of the victims' group engaged in another, largely verbal, altercation with several people, including defendant.. During that altercation, someone continued to yell "Eastside" and "Tre Tre Crips." Some of the evidence presented suggested that Harris was the person doing the yelling. Eventually, the victims departed in a limousine.
15 Harris testified for the prosecution at defendant's trial after having secured immunity from prosecution in this case and several other cases. According to Harris, defendant was the driver of the Tahoe, and he followed the victims' limousine аfter it left the nightclub, Harris stated that he was riding in the rear passenger seat as the Tahoe overtook the victims' limousine, and he saw, defendant lean across the front console and fire shots from the passenger side window into the side of the limousine. Harris testified that only one gun was used, but the evidence established that, of the shots that hit the lHimou-sine, some had been fired from a 40 caliber handgun, and others had come from a 45 caliber weapon.
16 Two security guards at the mghtclub testified to their observations of a green SUV that evening. One saw an individual, perhaps matching Harris's desenptlon, get into the green SUV. /
17 At trial, a-person who lived at the Parkway Condominiums in the Golden Triangle area testified that he was on a deck outside his eleventh-floor apartment at around 2:15 a.m. on New Year's Day when he heard between eight and ten "pops." Shortly thereafter, he saw a green or brown SUV driving at a -high rate of speed traveling on the boulevard next to his apartment complex.
{8 The prosecution's theory at trial centered on the assertion that defendant was a member of the Tre Tre Crips gang and, on the evening of the incident, felt that he, his gang, or a fellow member of his gang had been disrespected by the victims, Because of his allegiance to the gang, the theory posited, defendant felt compelled to commit the shooting.
19 The prosecution presented evidence that defendant confessed his involvement in the shooting to Veronica Garcia, Vernone Edwards, Julian Vigil, and J.G. (a cellmate, while defendant was imprisoned pretrial). The prosecution also introduced a letter written by defendant appearing to acknowledge his role as the shooter.
110 Defendant posited that Harris had carried out the shooting from the green SUV. He argued that Harris had provided false information to -secure a favorable plea deal from the prosecution.
TH A jury convicted defendant on all of the counts charged.
IL Evidentiary Issues
112 Defendant contends the trial court erred in admitting or rejecting certain evidence, Specifically, defendant argues that the court;: (1) erred by admitting evidence and testimony regarding his gang membership, as well as expert testimony about gang origin, structure, psychology, hierarchy, and presence in Denver; (2) erred by limiting his cross-examination of several witnesses; (8) erred by admitting Harris's prior consistent statement; and (4) erred by refusing to admit grand jury testimony of two witnesses who refused to testify at trial. We address and reject each contention in turn. -
1. Preservation and Standard of Review
1 18 The parties agree that defendant adequately preserved his arguments.
¶ 14 "A trial court has broad diseretion in ruling on the admissibility of evi-denee." People v. Beilke,
2. Law
T15 "Evidence about gang culture is admissible if relevant to explain a cireum-stance of the crime, ... to show a motive for the crime itself, or to understand a witness's change in statement or reluctance to testify." People v. James,
116 "Still, because 'gangs are regarded with considerable disfavor by. our so-clety,' gang-related evidence must be 'admitted with care'" People v. Trujillo,
117 Evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probаble. CRE 401. In criminal cases, evidence is relevant if the evidence makes it more or less probable that a criminal act occurred, the defendant was the perpetrator, or the defendant acted with the necessary criminal intent. People v. Cordova,
T18 "[Rlelevant evidence can be excluded if .., its probative value is substantially outweighed by the danger of unfair prejudice." Trujillo, (citing CRE 403). Evidence is unfairly prejudicial if it has an " 'undue tendency to suggest a decision on an improper basis .., such as sympathy, hatred, contempt, retribution, or horror.'" James,
19 Relevant evidence may also be exelud-ed under CRE 404(b) if "it is used to prove the character of a person in order to show that he or she acted in conformity with that character on a particular occasion." Trujillo, ¶ 56 (citing Yusem,
120 The distinction between admissible evidence of motive and inadmissible character evidence " 'is often subtle.'" Masters,
i 8. Application
121 The trial court denied defendant's motion in limine seeking to exclude evidence of gang affiliation, finding that the case "is permeated with gang references," and that "to excise any information about gang membership or the orgamzatlon of gangs
122 ... is not only impossible, but it's completely unsupportable," because the case and gang evidence involved "a huge deal about the respect issues [and] saving-face issues." '
T23 Defendant contends that. none of the evidence regarding his affiliation with the Tre Tre Crips gang should have been admitted at trial. He argues that the shooting in this cage was the result of a "bar fight" that had broken out when an individual became "upset about being sprayed with champagne." Therefore, he asserts, evidence of his affiliation with the gang was not relevant and was extremely prejudicial, We reject defendant's contention,
124 Two witnesses. testlfied that defendant's gang affiliation had motivated him to participate in the shooting. J.G. testified that defendant had identified himself as a member of the Tre Tre Crips gang and had told him that the shooting occurred because the victims "weren't respecting Crip" and were "disrespecting the Eastsiders." Later, Julian Vigil testified defendant had told him that he had "dumped on" the victims because they were "disrespecting Denver Crips."
25 Given these facts, defendant's affiliation with the Tre Tre Crips gang "could have shown a fmotive to commit the crime[s]" charged requiring specific intent. See Mendoza,
126 Defendant also attacks the expert testimony of a police officer who testified concerning the origin of the Crips gang, its relationship with other gangs, the origin of the "sub-gang" to which defendant belonged, the hierarchy of the. gang, and what it means to be "jumped in" as a member, He contends all of the expert's testimony was irrelevant, prejudicial, and constituted inadmissible evidence of bad character.
127 A division of this court recently held that the majority of a "gang expert's" testimony was inadmissible under CRE 401, 402, and 404(b). See Trujillo, ¶¶ 67-86. While we agree that such testimony must be "admitted with care," id. at 172 (internal quotation marks omitted), we nevertheless conclude that the factual cireumstances present in Trugillo differ significantly from those presented here.
28 Importantly, the Tryjillo division held that an expert's testimony regarding a gang's codes of respect, loyalty, and allegiance is admissible to prove a defendant's motive fоr committing the crime. See id. at ¶ 86.
1.29 The expert in this case testified that the Tre Tre Crips gang has a code of respect under which disrespect to one member translates to disrespect to the whole group. Thus, if one member is, disrespected, the whole group must act to rectify that insult. If a member does not act, he or she stands to lose face because of cowardice, The expert also testified that loyalty and allegiance are the paramount expectations of any member of the Tre Tre Crips gang. Because this testimony explained defendant's potential motive for committing the crimes at issue, it was properly admitted." See id.
1 30 Relying on Trujillo, defendant asserts that the expert's testimony regarding the origin, locale, and structure of the Crips gang was irrelevant and unfairly prejudicial,. Defendant also contends that the trial court erred by admitting photographs of his tattoos and allowing the expert to explain their significance, See id. at ¶ 77 (holding expert testimony about the drganizational structure and size of the gang at issue, as well as the meaning of certain tattoos, was not probative of defendant's motive and therefore did not relate to a material fact).
131 However, "[mlaterial facts" may either be "'ultimate facts'" (ie. evidence defendant- committed the crime, evidence of the requisite intent, or evidence of deliberation)
¶ 32 Here, the prosecution had to establish defendant was a member of the Crips gang in order to establish that he may have possessed the motive provided by the code of respect. Thus, many aspects of the expert’s testimony were intermediate facts which, in conjunction with the lay testimony offered, were probative to show that defendant was a Crips member. See id. For example:
• Several witnesses testified that someone at the night club was shouting “Eastside” and J.G. testified that defendant told him the victims were “disrespecting the Eastsiders.” The expert testified that the Tre Tre Crips were centered in the east side of Denver.
• A рolice officer testified that defendant had ádmitted to writing a letter in which he used the phrase “death by dishonor” when referring to “the Ri-can” (Daniel Hams’s nickname). The expert explained that the Crip gang enforces a code of silence.
• Defendant had a tattoo that spelled the word “stacc.” The expert testified that the “cc” stood for “Compton Crip” which referred to the origins of the Crips gang in California.
• Defendant had tattoos that , read “MOB,” “303,” “Eastside” over stacks of money, and “Lett” with the “e” backwards to form a “3.” The expert explained that each of these tattoos referred to common phrases used within the Tre Tre Crips gang, or the geographic area in which the gang was centered. ■'
¶ 33 Likewise, establishing motive required the prosecution to. show that the code of conduct would have been triggered by events that transpired at the nightclub. Before the expert testified, Veronica Garcia had'testified that defendant was a member of the Tre Tre Crips gang, whereas Daniel Harris was a member of the Grape Street Crips gang. The parties appear to agree that Hams was the man who was sprayed with champagne at the nightclub. Therefore, the expert’s testimony regarding "the structure of the sub-gangs that claimed allegiance to the broader Crips organization was material to establishing the relationship between defendant and Harris. See Masters, 58 P.3d at 997.
¶34 Notably, the lay witnesses and the expert in,Trujillo had testified about several violent acts previously committed by members of the. gang at issue in that case. See ¶¶ 34, 47, 48, 64. Neither the lay witnesses nor the expert in this case testified to any prior acts of the Tre Tre Crips gang or the broader Crips organization.
¶35'Unlike the evidence in Trujillo, the evidence in this case “was not offered to prove that-the defendant-was more likely to kill because he- was a gang member; rather, it was offered to show that, because of his membership in a ..; gang, defendant was more likely to” have the motive to commit the crimes charged against victims who had disrespected the gang. Mendoza,
¶ 36 Therefore, the trial court did hot abuse its discretion by admitting the gang evidence in question.
B. Limits on Cross-Examination
¶ 37 Defendant asserts that the .trial court abused its discretion by precluding certain lines of inquiry during his cross-examination of Daniel Harris, Vernone Edwards, and Julian Vigil. He also contends that the trial court’s rulings violated his constitutional confrontation rights.
¶ 38 -We conclude that the trial court did not abuse its discretion; hence, we also conclude there was no excessive limitation that violated defendant’s constitutional rights.
39 The parties agree that defendant adequately preserved his arguments with respect to these evidentiary rulings.
¶ 40 Again, we review a trial court’s evi-dentiary rulings for an abuse of discretion. People v. Houser,
2, Cross-Examination of Daniel Harris
a. Backgi'ound
{41 Daniel Harris testified that defendant was the shooter. During cross-examination, defense counsel questioned Harris extensively about specific instances of his untruthfulness, which included giving a policeman a false name and pleading guilty to providing false identification to a police officer.
142 Harris also acknowledged that,. in 1995, he had pleaded guilty to two felonies arising from, an incident in South Dakota: aggravated assault and discharge of a firearm from a moving vehicle into an occupied structure. The trial court also permitted defense counsel to question Harris about his interactions with police during his arrest for those erimes. Defense counsel then cross-examined Harris about the timing of his arrest, his flight prior to arrest, and the false statements he had made to police about his involvement in the crime and the gun that had been used. (_ '
148 Later, defense counsel asked Harris about meeting with investigators and the deputy district attorney concerning his testimony in this case. Counsel inquired whether they had asked him about the South Dakota incident,. He confirmed that they had. Defense counsel then asked whether the investigators had the "reports that said the house had holes in it." The trial court sustained an objection by the prosecutor and told defense counsel he could make an offer of proof later.
1 44 Outside the presence of the jury, defense counsel proffered that, when Harris had been asked about the incident in South Dakota, he claimed to have shot in the air, not at the residence. Defense counsel argued that the presence of holes in the house in combination with Harris's statements to police were probative of his truthfulness or untruthfulness.
T45 The trial court stated thaf it had sustained the objection under CRE 408, explaining that it had considered the cross-examination in its entirety and determined that defendant had "obtainéd as much probative value out of that particular instan[ce] as [he was] ever ... going to." "'The court reasoned that the danger of unfair prejudice and confusion of the issues outweighed the probative value of any addltlonal testimony on the topic.
b. iLaW'
46 "Under CRE 608(b), a witness may be cross-examined about specific instances of conduct that are probative of the witness's character for truthfulness or untruthfulness." People v. Knight,
147 Nonetheless, "[a] trial court has discretion ... to exclude CRE 608(b) evidence on CRE 408 grounds." People v. Wilson,
T 48 “A matter is consudered collateral when it has no independent significance to the case and thus would not be independently provable regardless .of thе. impeachment."
c. Application
49 Here, the court's decision to preclude further questioning of Harris about the specific South Dakota incident in which he was allegedly dishonest was not an abuse of discretion, The trial court had properly permitted defense counsel to establish that Harris had been convicted of two felonies in South Dakota. See § 183-90-101, (felony convictions of a witness are admissible). Defense counsel also had properly questioned Harris as to the name, nature, and date of those offenses. People v. Huynh,
T50 Thus, defense counsel had already established that Harris had been dishonest with the police numerous times in the past. One additional instance of dishonesty arising in the context of preparation for his testimony in this case carried little probative force because the jury already had sufficient information with which to determine Harris's credibility. See People v. Sweeney,
¶ 51 Allowing inquiry into "details that go beyond the face of the conviction may lead to wasteful collateral disputes requiring witness testimony about the way in which the [prior] crime was committed." Roger Park & Tom Lininger, The New Wigmore Treatise on Evidence: Impeachment and Rehabilitation § 3.4 (2014). As a result, a trial court must make a pragmatic decision whether the probative value of the specific details is substantially outweighed by the policy considerations of CRE 408. See Kenneth S. Broun et al., 1 McCormick on Evidence § 49 (7th ed.2018).
152 Here, the factual details underlying the South Dakota incident were collateral matters, See Wilson, 189. Defendant has not established that the South Dakota incident or Harris's dissembling concerning it in this case had significance independent of its impeachment value. See id. at ¶ 37. Indeed, the police reports from South Dakota were not independently admissible. See People v. Inman,
153 Furthermore, Harris testified that he had pleaded guilty to the felonies that he had committed in South Dakota and had served a six-year sentence. Thus, the acts associated with those felony convictions were not subject to the terms of his plea agreement with federal prosecutors and did not affect his motive to testify against defendant,. See Wilson, ¶ 37; Huynh,
54 Under these cireumstances, the trial court's decision to preclude further inquiry regarding the South Dakota incident was not arbitrary, unreasonable, or unfair,. See Cooper,
8. Cross-Examination of Vernone Edwards
a. Background
¶ 55 Vernone Edwards testified to a conversation in which defendant took responsibility for the shooting. He also recounted that defendant had called him after the shooting and requested that he provide defendant a replacement weapon for the one that defendant had used in the shooting (which Edwards said defendant had disposed of). Edwards also testified to a conversation with Daniel Harris in which Harris recounted the shooting to him.
€56 During his cross-examination of Edwards, defense counsel asked the witness whether he had previously engaged in a robbery that had involved three other prosecution witnesses. The prosecutor objected on CRE 404(b) grounds. During a bench conference, defense counsel stated that he was offering the testimony to show "[the relationship between" the four witnesses. The trial court allowed defense counsel to ask "one question" on the topic. Counsel asked the witness the question he had originally posed and Edwards responded by saying, “Yes »
157 When defense counsel attempted to ask a follow-up question, the trial court stated that it had instructed defense counsel to ask only one question and told counsel to move on. >
158 Later, defense counsel attempted to question Edwards about his statements to police officers investigating defendant's case. At a bench conference, defense counsel indicated that he was attempting to question Edwards about "another robbery" in which he had injured his foot. According to defense counsel, a police officer had asked Edwards how he had injured his foot and, after "two or three ... deceptions," Edwards admitted that he had injured himself by kicking a person in the head during a robbery. 'The trial court permitted defense counsel to ask two questions on that topic.
During the same bench conference, defense counsel also stated that Edwards had attempted to deceive "another person that was involved in" his drug organization. Counsel described the robbery as "an elaborate setup" designed to allow an unidentified person "that was in on the robbery ... to pretend that he wasn't." f
1 60 The trial court reasoned that this line of questioning was "far afield ... of anything that's relevant" and that additional inquiry would confuse the jury. Pursuant to CRE 4083, the court precluded defense counsel from asking any questions about the scheme,
b. Law
{61 Under CRE 404(b), "relevant evidence can be excluded if it is used to prove the character- of a person in order to show that he acted in conformity with that character on a particular occasion." Yusem,
T62 In People v. Spoto,
c. Apphcatlon
163 Defendant contends the trial court abused its discretion by precluding his counsel's inquiry into the specific cireum-stances of the two robberies. We disagree.
T 64 There is no evidence in the record to suggest that Edwards was convicted of either of the robberies at issue. Therefore, the admissibility of evidence regarding each robbery is subject to the requirements of CRE 404(b). See Yusem,
T65 Defense counsel offered evidence of the first robbery to establish "[t]he relationship between" the four witnesses. The court permitted counsel to inquire about it, and the witness acknowledged the relationship. Any additional evidence on the topic had marginal probative value and the trial court did not abuse its discretion in determining that any additional evidence was needlessly cumulative. See People v. Saiz,
T66 According to defense counsel's proffer, evidence of the second robbery was offered to show Edwards's character for untruthfulness. But before addressing the second robbery, defense counsel had elicited admissions from Edwards that he had led a life of deception, had been convicted of three prior felonies, and believed eriminals would deceive police officers to get out of trouble. Furthermore, the trial court permitted defense counsel to question Edwards about his untruthful statements to pohce regarding hJS role in the second robbery
67 Because this testimony. "made defendant's point clear," we conclude the trial court's ruling disallowing evidence of the elaborate robbery scheme "did not violate CRE 408." People v. Underwood,
{68 Accordingly, we conclude the trial court did not abuse its discretion in precluding additional questioning regarding the circumstances surrounding the robberies.
4. Tiimits on Cross-Examination of Julian Vigil
a. Background
'T69 Vigil testified that, on the morning following the shootlng, defendant confessed to the shooting and mquu‘ed of Vigil how to contact a criminal defense attorney with whom Vigil was acquainted. Vigil testified that when he drove defendant to the lawyer's home, defendant explained that the victims' group had "disrespected Denver Crips," and that he was in the white Tahoe when the shooting occurred.
70 Defense counsel questioned Vigil about a prior felony conviction for theft by deception. In response, Vigil admitted that he had pleaded guilty to theft because he had purchased a vehicle using his grandmother's name without her permission.
-T71 , Counsel then asked the witness whether he had tried to do the same thing a second time. Vigil replied by saying, "No." Counsel persisted and asked whether "[It was a 2002 Tahoe in March of 2005." Again, Vigil responded by saying, "No." Counsel then asked whether Vigil had taken "the finance manager to [his] grandmother's nursing home." The prosecutor objected under CRE 403 and the trial court sustained the objection. e
T72 Later, outside the presence of the jury, defense counsel argued that he should have been permitted to ask Vigil about the second, uncharged incident, because it was probative of his character for truthfulness or untruthfulness. The trial court ruled that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.
b. Law
¶ 73 "[Wihile the character of a witness for truth and veracity may be shown, impeachment may not be accomplished by attacking the general character of the wit
c. Applicatidn
174 Defendant asserts that the trial court abused its discretion by limiting defense counsel's inquiry into the details surrounding Vigil's uncharged act." We disagree. ' , T75 The trial court properly permitted defense counsel to question Vigil regarding the theft offense for which he was. convicted. See § 12-90-1011. Exercising its discretion, the trial court also appropriately allowed counsel to question the witness about the second, uncharged act of theft. See CRE 608(b); see also Knight,
176 When Vigil denied that he had committed the uncharged act, counsel began to question him about the specific factual details surrounding the prior act. While the trial court gave counsel some leeway to do so, it determined that counsel's question regarding the nursing home was an impermissible attack on Vigil's general character.
177 The trial court "has ... discretion to control the extent to which" impeachment "may go." Taylor,
5. Excessive Limits on Cross-Examination
1 78 In light of our rejection of defendant's assertion that the trial court abused its discretion in limiting the eross-examination noted above, we also conclude that the trial court's rulings did not result in a violation of defendant's constitutional rights to confront the witnesses against him.
C. Invocation. of the Fifth Amendment
T 79 Defendant asserts that the trial court erred in its handling of two witnesses who refused to answer questions based on the Fifth Amendment's privilege against self-incrimination. We disagree. _
1. Law
¶ 80 "There is tension between the rights of a defendant and the rights of a witness." People v. Smith,
¶ 81° However, the defendant's right to present a défense is not absolute. Id. (citing United States v. Valenzuela-Bernal
¶ 82 Thus, when a witness properly invokes his or hеr Fifth Amendment privilege, there is no violation of the defendant’s right to present a defense. Smith,
¶ 83 The privilege “is an option of refusal, not a prohibition of inquiry.” People v. Austin,
¶84 However, “‘the exercise of the privilege is not evidence to be used in the case [b]y any party.’ ” Dikeman, 192 Colo, at 4,
¶ 85 “The privilege against self-incrimination ... continues until a defendant has been sentenced.” People v. Villa,
¶ 86 Once a witness indicates that he or she intends to invoke the Fifth Amendment privilege, the trial court must determine whether the witness’s refusal to testify is justified. Smith,
2. ’Marvin Bragg’s Motion to Quash
a. Background
¶ 87 Bragg, the brother of Daniel Harris, filed k motion to qu'a'sh the trial subpoena that ordéred him to appear and testify.' Attached'to the motion was his sworn declaration'in which he explained that he was a defendant in a pending federal matter for which he had pleaded guilty to conspiracy to distribute cocaine and possession with intent to distribute that drug.
¶88 Bragg also stated that several drug charges would remain pending until he was sentenced for the crimes to which he had pleaded guilty. He had not yet been sentenced when he signed his declaration, nor had he yet been granted any type of state or federal immunity. In addition, Bragg stated, “If called as a witness at [defendant’s] trial, I will invoke my Fifth Amendment privilege against self-incrimination to all questions asked of me.”
¶ 89 In opposing the motion to quash, defense counsel stated, “whether or not [Bragg] does in fact choose to invoke ... [i]t is up to the jurors to decide what role, if any, he had in this.” Counsel urged the trial court to have Bragg “presented as a witness” so the jury could “see” him “refuse[] to answer questions” about “[t]he events ... that night and his conversations with his .brother,” Daniel Harris, “so [the jury could] determine ... them view of his credibility.”
¶ 90 The trial court inquired whether defense counsel could provide any. authority to suggest that the rule stating that “a Court should not require a person to invoke the Fifth Amendment by way of testimony in front of a jury” had changed. Defense counsel responded by saying, “I’m not aware of anything that says it has changed.”
¶ 91 The trial court found that Bragg had made it deal’, through his declaration, that he would invoke his privilege. Reasoning that it would be improper to force Bragg to invoke the privilege in front of the jury, the court granted the motion to quash.
192 Defense counsel objected to the court's decision on Bragg's motion to quash. However, he did not assert in the trial court, as defendant now does on appeal, that the court should have. allowed questioning of Bragg outside the presence of the jury before allowing him to invoke his Fifth Amendment privilege. Thus, we review his contentions under a plain error standard. See People v. Mares,
1 93 However, as the court noted in Smith,
<>c. Application
194 On appeal, defendant contends that the trial court-violated his constitutional right to present a defense by refusing to hold an in camera review to subject Bragg to questioning before granting his motion to quash, We do not agree. >
T95 The record indicates that defense counsel wanted the jury to see 'and hear Bragg refusing to answer questions, Presenting Bragg to the jury was necessary, counsel argued, so that the j jury could "determine ... their view of his credibility." This line of proposed inquiry is precisely the type of inquiry that is forbidden. See Newton,
[ 96 If defense counsel had requested an in camera hearing, the court would likely have been obligated to hold one. See Dikeman,
1 97 Furthermore, counsel did not question Bragg's intent to invoke the privilege. Instead, the trial court's finding that Bragg had "made it clear ... that he intended] to invoke ., . the privilege" stood unchallenged.
[ 98 Under these cireumstances, we conclude that the court did not err in granting Bragg's motion to quash. See Fletcher,
8, Marquise Harris's Invocation of the Fifth Amendment
a. Backgrbund
99 During its case-in-chief, the prosecution introduced a letter in which defendant appeared to acknowledge his role as the shooter. A police investigator testified that Marquise Harris had given him the letter and that defendant had admitted he wrote the letter.
1100 Before he was called as a witness, Harris, through appointed counsel, filed a motion to quash the subpoena that compelled him to appear and testify in defendant's case on Fifth Amendment grounds. In response, defense counsel requested an inquiry into the basis for Harris's invocation of the privilege. Counsel represented that the only basis that he could see for Harris's invocation of the Fifth Amendment was the questions the defense had "raised throughout thle] case ... as to the authenticity" of the letter Harris had provided to police.
T101 At the parties' request, the trial court appointed counsel for Harris and ordered Harris to state the grounds for his invocation of the privilege before a different judge in an ex parte hearing. After that
{102 During direct examination, defense counsel attempted to establish that Harris had asked for reward money after disclosing the letter to a local newspaper and the Denver Broncos football team. Defense counsel asked Harris whether he had ever "in [his] life" given "information to the prosecution." In response, Harris asserted his Fifth Amendment privilege and his attorney also objected on those grounds.
{103 'At a subsequent bench conference, defense counsel asserted that Harris "has made a pattern of ... creating evidence and disclosing it in an exchange for trying to get a benefit." Defense counsel represented that a prior instance had occurred in connection with a 2001 murder case for which Harris had no eriminal exposure.
{104 The trial court inquired why the Fifth Amendment issue was not brought up when the court ordered a hearing before a different judge to address the witness's Fifth Amendment privilege. Defense counsel responded that he had not raised it because the witness had no Fifth Amendment right in this particular instance.
1105 The court sustained Harris's assertion It reasoned that defense counsel should have indicated his intent to address this issue prior to the ex parte hearing, but had failed to do so. The court also noted that the incident occurred in 2001 and referenced CRE 403.
b. Preservation and Standard of Review
T106 The parties agree that defendant properly presérved this issue for appellate review. '
{107 We review a trial court's decision regarding the admissibility of evidence for an abuse of discretion, Beilke, 232 P. ad at 149. "A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair." Id.
¶ 108 We review de novo the propriety of a witness's assertion of his or her Fifth Amendment privilege. See People v. Ruch, 2013. COA 96, ¶43, - P.3d -; Smith,
e. Law
¶ 109 "[Blefore a court can compel a response ... in the face of a claim of the privilege, it must be (perfectly clear, from a careful consideration of all the cirenimstances in the case, that the witness is mistakеn, and that the answer{s] cannot possibly have such tendency' to incriminate." People v. Razatos,
T110 A trial court may exclude relevant evidence "if its probative value is substantially outweighed by -. .. considerations of undue delay." CRE 408. Although Colorado appellate courts have not directly addressed the "undue delay" provision of CRE 408, the rule "is substantially similar to its federal counterpart, and, therefore, we may look to federal authority for guidance in construing the state rule." People v. Williams,
{111 Under the federal rule, the term "delay" to "the prolonging of the length of the trial and can be read. properly in conjunction with the other exclusionary factors: waste of time, or needless presentation of cumulative evidence,." United States v. Smithers,
d. Apphcatmn
‘ll112 Defendant contends that the trlal court erred by refusing to permit defense counsel to ask Harris whether he had ever, "in [his] life," given "information to the prosecution." 'We are not persuaded.
[113 We determine the propriety of a trial court's decision with respect to a witness's invocation of the privilege based upon "the information known to" the trial
¶ 114 At the outset, we note that the trial court gave defense counsel an opportunity to set forth the issues to be addressed at the ex parte hearing before a different judge. In response, counsel indicated that the only issue was the one that had been “raised throughout th[e] case ... as to the authenticity” of the letter Harris had provided to police. Counsel did not mention the 2001 incident.
■¶ 115 Whether Marquise Harris had a valid claim to the privilege with respect to defense counsel’s question was far from clear. Cf. Razatos,
¶ 116 As the prosecutor pointed out, there is no statute of limitations for “any forgery” in Colorado. § 16-5-401(l)(a), C.R.S.2014. And the statute of limitations for penury “does not begin to run until the criminal- act is discovered.” People v. McKinney,
¶ 117 Based on the information before- it, the trial court was faced with a dilemma: (1) sustain the invocation of privilege, as it did; or (2) seek out yet another judge to hold an additional ex parte hearing regarding Harris’s criminal exposure in the 2001 incident,
¶ 118 We conclude the trial court did riot abuse its discretion by deciding to proceed in the manner it did. In his opening brief, defendant claims that the trial court’s ruling prevented him from calling into question Hams’s credibility as to how he obtained the letter and his motive for - disclosing it to police. But the prosecutor had elicited testimony indicating defendant admitted the letter was in his handwriting. Arid the parities had stipulated that Harris- had sought a $100,000 reward as well as monetary payments from a newspaper in exchange for the letter. As a result, the probative value of Harris’s prior act was low. See Saiz,
¶ 119 Further, a "second ex parte hearing before a different judge would certainly have prolonged the trial. . See Smithers,
¶ 120 Concerning the issue of whether the trial court’s decision excessively limited defendant’s ability to examine ¡Marquise Harris, we reject the contention. The court’s limitations were appropriate, and within the bounds of its prerogative under the federal and state constitutions.
D. .Daniel Harris’s Prior Consistent Statements
¶ 121 Defendant conterids the trial court abused its discretion by admitting the entire videotaped interview of Hams as á prior consistent statement. He also asserts that the trial court should have issued a limiting instruction and that the. admission of the evidence without such an instruction violated his constitutional rights. , We disagree.
1. Preservation and Standard of Review
¶ 122 The parties agree the defendant preserved the trial court’s evidentiary riding for review. We review a trial court’s evidentiary rulings for an abuse of discretion. People v. Welsh,
1123 However, defense counsel did not assert in the trial court that it should issue a limiting instruction or that the trial court's decision to admit the evidence without such an instruction violated defendant's constitutional rights,. Accordingly, we will review those contentions for plain error. See Wilson, T 31 ("[Blecause defense counsel never asserted in the trial court that any constitutional right was implicated, we apply the plain error standard of review."); People v. Griffin,
2, Law
1124 In Colorado, a witness's prior consistent statements are admissible under two distinct theories. See People v. Elie,
125 Under either theory, "[the rehаbilitative uses of such statements are still governed by the general principles of relevancy found in CRE 401, 402, and 408." Id. at 21-22, Thus, a "trial court must determine whether the statements have some probative force bearing on the eredibility of the witness beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his or her trial testimony." Id. at 22, The court must also "be mindful of the prohibition against the needless presentation of cumulative evidence." Id.
1126 "Determining 'how much of a prior consistent statement is admissible is based upon its relevance and probative use'" which "turns on the seope of impeachment and the attack on the witness's credibility." People v. Miranda,
8. Application
€127 On appeal, defendant appears to argue that CRE 801(d)(1)(B) provides the only avenue for a court to admit such statements and that the requirements of the rule were not met because there was no claim of "recent fabrication." This argument directly contradicts the supreme court's holding in Eppens and we therefore reject it. See
1 128 Defendant also argues that the trial court's decision to admit the evidence for rehabilitation was erroneous because the interview contained both consistent and inconsistent statements, as well as statements that were neither consistent nor inconsistent. Therefore, defendant argues, some portions of the videotape were admitted as substantive evidence. This argument ignores the scope of defense counsel's impeachment and attack on Harris's credibility.
1129 At the start of defense counsel's cross-examination, counsel asked Harris whether he had "a habit of telling stories to get [him]self out of trouble?" This question was followed by inquiry into Harris's prior
T 136 Defense counsel also Extensively cross-examined Harris about the requirements of his plea agreement 'as well as the benefits he expected to receive if he met those requirements to the prosecution's satisfaction. Cf. Banks, ¶ 37 (questioning about the witness's motive to lie brings into question a witness's general truthfulness).
¶ 181 In addition, defense counsel cross-examined Harris on almost every aspect of his account of the crime, including his actions at the nightclub, his relationship with defendant, the interactions'*between the men in the white Tahoe, who drove the car, who did the shooting and from which angle, what the gun looked like, his actions after the shooting stopped, his conversations with defendant and others in the days following the shooting, and his flight to Mexico, Such a comprehensive examination constitutes a general attack on the credibility of Harris's version of events. Elie,
¶ 182 We agree with the trial court that because it gave defense counsel extensive leeway to attack Harris's credibility with respect to his testimony in this case and his prior interactions with police officers, admission of the entire video was proper to give the jury the full picture of what he had said to the police: See Banks, ¶ 39 ("[A] of the prior statements were relevant and admissible to give the jury a complete picture of [the] witnesses' credibility."). |
133 Therefore, we conclude that the trial court did not abuse its discretion by admitting the videotaped interview. Id.
1134 Concerning defendant's assertion that the court shоuld have issued a limiting instruction, "(als a general rule, defense counsel is charged with the task of deciding whether a limiting instruction is desirable." People v. Thomas,
[ 185 Because defense counsel did not request such an instruction and defendant has not pointed us to any case law or statute that requires such an instruction, we discern no error in the lack of an instruction regarding this evidence. Thomas, ¶ 59.
136 'We also conclude that the trial court did not err, let alone commit plain error, with respect to defendant's constitutional rights. See People v. Rincon,
E. Grand Jury Testimony of Unavailable Witnesses
137 Defendant asserts that the trial court erred in refusing to admit the grand jury testimony of two witnesses, Mario Anderson and Markie Jackson-Keeling, who refused to testify at trial, Defendant did not include in the record the transcript of their testimony before the grand jury, and the motions division of this court denied his request to supplement the record. Under these circumstances, we cannot address his assertion,
1. Background
"138 Both Anderson and Jackson-Keeling, who may have been passengers in the white Tahoe during the shooting, were called as witnesses in the grand jury proceeding that produced the indictment in this case. Apparently, their testimony was favorable to defendant. ‘
11189 After the men were called as witnesses at trial, they declared their intent' to invoke their Fifth Amendment rights and refused to testify. The prosecution then granted them immunity and the trial court ordered them to testify, Both men declined to do so and the court held them in contempt.
140 Defendant then sought to introduce the transeripts of the testimony the men had given before the grand jury under CRE
2. . Analysis
¶ 141 On appeal, defendant argues that the trial court abused its discretion by refusing to admit the grand jury testimony because the prosecution's motive to develop that testimony was similar to the motive it would have held at trial, had the wrcnesses testified.
¶ 142 But any inquiry as to whether the "similar motive" requirement of CRE 804(b)(1) has been met would, at the very least, require a review of the grand jury testimony, See United States v. Foster,
1 143 As a result, "the record is insufficient to permit the conclusion that the trial court[ 1" abused its discretion, id., and we therefore cannot review the contention.
III. Complicity Instructlon
' 144 Defendant contends 'that the trial court gave an erroneous Jury instruction regarding complicity, We disagree.
A. Preservation and Standard of Review
{145 The parties agTeé that defendant adequately preserved this issue for review.
¶ 146 "'We review jury instructions de novo to determine whether the instructions as a whole accurately informed the jury of the governing law'" People v. Reeves,
B. Law-
¶ 147 Comp11c1ty "is ... a theory by which a defendant becomes accountable for a criminal offense committed by another." People v. Thompson,
¶ 148 "[Ujnder a complicity theory, it is not necessary that any single person commit all the elements of the underlying offense." Elie,
1149 "An instruction on complicity may be given when supported by evidence admitted at trial that two or more people engaged jointly in a crime." People v. Grant,
(1) A crime must have been committed. (2) Another person must have committed [all or part of] the erime. (8) The defendant must have had knowledge that the other person intended: to commit [all or part of] the crime. (4) The defendant must have had the intent to promote or facilitate the commission of the crime. (5) The defendant must have aided, abetted, advised, or encouraged the other person in the commission or planning of the crime.
Bogdanov v. People,
1150 "The language contained in the brackets [noted above] should be included in the complicity jury instruction only in those cases where [two] or more persons, possibly including the defendant, together committed the essential elements of the underlying erime." Bogdanow,
T 151 "[WJhen a defendant charged with a crime under a complicity theory did not actually commit any of the essential elements of the crime, it is error to include the 'all or part of language in the instruction." Elie,
C. Application
1152 Here, the trial court gave an instruction that tracked the language of seetion 18-1-608, as approved by the supreme court in Bogdanov,
1158 Defendant asserts he "would not have committed any of the essential elements of [the] erime[s]" charged if he "was not the shooter but ... was [instead] the driver." Thus, he argues that the court should not have included the "all or part of" language in the instruction. We disagree.
§154 The jury was presented with evidence that would have supported several see-narios of how the shooting occurred. One scenario was that defendant was solely responsible for the shooting and thus was guilty as a principal, In addition, however, as the trial court noted, the evidence could support the theory that
there were two shooters based on the bullets and the caliber. And we could have seen some unnamed person, either Jackson-Keeling, or Vernone Edwards, sitting in the passenger side of the front seat, Daniel Harris in the back, and/or flip those, And those two as the shooters and one of those may have used [defendant's] 40 caliber handgun, and [defendant] drove for the express purpose of getting this drive-by shooting to happen.
[ 155 .If the jury believed this latter view, and it found that all other elements of the complicity instruction had been proved, it could have legitimately. found - defendant guilty of murder, because the "all or part of" language "should be included in the complicity jury instruction ... where [two] or more persons, possibly including the defendant, together committed the essential elements of the underlying crime." Bogdanov,
€ 156-In this case, causation was one of the elements of first degree murder (extreme indifference), first degree murder (after deliberation), and second degree assault. The trial court properly instructed the jury that the term "'cause' means that act ... which in natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have been incurred." See People v. Moreland,
1157 If the jury's analysis tracked the scenario set forth by the trial court, it could have reasonably concluded that defendant intentionally gave his .40 caliber handgun to the shooter and drove the white Tahoe with the express purpose of facilitating the shooting. Because these acts wоuld have been acts without which the injuries sustained by the victims would not have occurred, the fury could have concluded that defendant caused the injuries. Cf. State v. Smith,
« 158 Therefore, the trial court did not err by including the "all or part of" language with respect to the crimes set forth above. See Bogdanov,
{159 Concerning attempted first degree murder (extreme indifference), that crime does not require proof of causation. See People v. Torres,
T160 But even so, the jury could have reasonably determined that defendant's actions as the driver of the white Tahoe constituted a substantial step towards the commission of first degree murder (extreme indifference). Cf. Lehnert,
T161 Accordingly, we conclude that the trial court properly included the "all or part of" language in the jury instruction regarding complicity. See Bogdanov,
IV. Prosecution's Knowing Use of False Evidence
162 Defendant makes two related contentions that stem from his assertion that Daniel Harris was the shooter. First, he contends that the prosecution violated his due process rights because it knowingly used Harris's false evidence to obtain his conviction. Second, he contends the prosecution improperly argued inconsistent factual theories. The People respond that we lack jurisdiction to review these contentions. We conclude that we have jurisdiction to review the contention but nevertheless determine that defendant's claims fail.
A. Jurisdiction
1168 Relying upon People v. Bergen,
{164 In Bergen, the defendant asserted that the prosecution had committed misconduct in its handling of the grand jury, and requested dismissal of the indictment under a theory of outrageous governmental con-duet, A division of this court stated that "a supervisory power of this court to sanction prosecutorial misconduct by ordering the dismissal of an indictment is uncertain," and
1 165 Bergen is inapposite because defendant is not requesting dismissal of the indictment, nor is he requesting relief based on any supervisory power possessed only by the supreme court. Instead, defendant seeks reversal of the judgment of conviction and remand for a new trial, relief that this court is statutorily authorized to provide. § 13-4-102(1).
B. Preservation and Standard of Review
[ 166 Defendant did not preserve either of these contentions for appellate review, Therefore, we review them for plain error. People v. Miller,
C. Lafiv
¶ 167 "It is fundamental that prosecutors may not present or allow perjured testimony." People v. Medina,
1168 Appellate courts in this state have not established a test to determine whether a defendant's constitutional rights are violated by the prosecution's use of perjured testimony. However, federal case law, [a] defendant must show three things: first, that the prosecution's case included perjured testimony; second, that the prosecution knew or should have known of the perjury; and third, that the perjury was material." Medina,
169 "The first two requirements ... are heavily fact dependent." Id. "Because those issues normally cannot be resolved from a cold trial record, these types of claims 'usually' must be 'made on a collateral attack.'" Id. (quoting United States v. Helmsley,
T170 "A person eommits perjury in the first degree if in any official proceeding he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law." § 18-8-502(1), C.R.8.2014.
T171 "Due process does not preclude a prosecutor from advancing alternative theories upon which a jury properly could convict one defendant in one trial." Medina,
D. Application
1172 Contrary to defendant's assertions, we cannot conclude Harris committed perjury in his testimony on the record before us.
€173 In his opening brief, defendant argues that Harris's testimony was not supported by the physical evidence or was in direct conflict with the testimony of other witnesses. For example, defendant asserts that Harris was "insistent there was only one weapon involved." That is true. But on direct examination, Harris testified that he could not "say for certain" whether or not the front seat passenger was also firing a weapon. And on cross-examination Harris testified that he had only "seen one" handgun. , 20. ‘
1 174 With respect to the events inside and immediately outside of the nightclub, defendant argues that Harris perjured himself
1175 Whether Harris was honest when he said he had only "seen one" gun and that he "did not remember" being involved in any altercations at the club involves credibility determinations. Cf. United States v. Harvig,
I 176 Accordingly, we eannot conclude as a matter of law that Harris committed perjury. Hence, we perceive no error by the trial court, let alone plain error, in not sua sponte finding a due process violation.
[ 177 We also сonclude that the trial court did not err, let alone commit plain error, by allowing the prosecution to present alternative legal theories in this single trial involving this single defendant. See, eg., Erwin v. People, 126 Colo, 28, 30-31,
V,. Motion for New Trial Based . on Juror Misconduct
T178 Defendant asserts that certain ju-rorg' actions occurring during trial constitute juror misconduct. He contends that his convictions must be reversed, or, in the alternative, that we must remand the case for a hearing.© We conclude that a remand is required.
A. Preservation
1179 As a threshold issue, defendant asserts that he adequately preserved this issue by filing a motion for a new trial under Crim. P. 88(a). The People, however, contend that we should not consider defendant's arguments 'because he did not tlmely 'file that motion. We first address and reject the People 3 contentlon
1. Standald of Review
180 Interpretation of court rules and statutes are “questions of law, which we review de novo." Gleason v. Judicial Watch, Inc.,
2. Law
181 As relevant here, Crim. P. 88(c) provided at the time that "a motion for a new trial ... shall be filed within 15 days" {(amended to 14 days in 2011) "after verdict or finding of guilt or within such additional time as the court may fix during the 15-day period." The People rely on the language stating that a court may fix additional time but only if it does so "during the 16-day period," arguing that no extension of time beyond any extension originally granted may occur. In support of their contention, the People rely upon People in Interest of Iuppa v. District Court,
€ 182 In Fuppa, the trial court had received and accepted a guilty verdiet on June 5, 1986, relating to robbery charges against the defendant. The trial court allowed the defendant thirty days to file a motion for new trial. At the sentencing hearing on July - 14, thirty-nine days after the verdict date, defense counsel stated he had intentionally not filed a motion for new trial, . Even so, the court granted him an additional week to file such a motion.
€183 The defendant filed a motion for judgment of acquittal or new trial within the one-week period,. The trial court initially ruled that it had lost jurisdiction to consider the defendant's motion, but later changed its ruling and decided that it retained jurisdiction over the new trial motion, The court then granted it. >
Crim. P. 88(c), as amended, is clear as to the time limit placed upon a motion for new trial, and Crim. P, 38(b) is clear as to the jurisdictional requirement when the court orders a party to file a motion for a new trial, Here, the court initially granted the defendant thirty days within which to file his motion for new trial, thereby extending the fifteen day period. Such an extension is proper under Crim. P. 88(c) because it was set "during the fifteen day period." Thirty-nine days then expired, and the court granted the defendant additional time to file the motion for new trial. The rule clearly prohibits the subsequent extension of time because it was granted after the original fifteen day period had expired.
Iuppa,
1 185 In our view, Iuppa is distinguishable from the cireumstances present here for several reasons.
186 First, the decision does not address Crim. P. 45, which deals with time issues in criminal cases, That rule provides for enlargement of time periods in subsection (b) and states, in pertinent part:
When an act is required or allowed to be performed at or within a specified time, the court for ecause shown may at any time in its discretion:
(1) With or without motion or notice, order the period enlarged if application therefor is made before expiration of the period originally prescribed or of that period as extended by a previous order; or
(2) Upon motion, permit the act to be done after expiration of the specified period if the failure to act on time was the result of excusable neglect.
Crim. P. 45(b).
{187 Thus, under the plain language of Crim. P. 45(b)(1), a court retains discretion to "order [a] period enlarged" if either (1) a request therefor is made before the expiration of the original period; or (2) a request is made during a period that has been extended by a previous order.
"[ 188 Iuppa did not address the application of Crim. P. 45(b)(1). Indeed, all that case said was that Crim. P. 33(c) "clearly prohibits the subsequent extension of time because it was granted after the original fifteen day period had expired."
1 189 Second, in Iuppa, the motion for new trial was filed offer the expiration of the thirty-day period originally granted by the court. Thus, the supreme court had no reason to address the provision in Crim. P. 45(b)(1) because defendant had not made a request for an enlargement before the end of the original thirty-day period, nor had the court granted any extension of that thirty-day period. The court mentioned, in passing, that there was no exensable neglect asserted in the case, thus acknowledging that the only provision available to. the defendant there arose under Crim. P. 45(b)(2), which allows a filing if the moving party can demonstrate excusable neglect.
11190 Accordingly, Fuppo does not control | our analysis. ‘
T191 Here, the People argue that (1) the jury found defendant guilty on March 11, 2010; (2) under Crim, P. 38(c), his motion for new trial was due within fifteen days or within such additional time as the trial court fixed during that fifteen-day period; (8) the court therеfore only had until Friday, March 26, to fix a different time period and it did not do so until March 29. Thus, they contend, all the extensions from March 26 to March 29 and from March 29 to April 19 were not authorized by Crim. P. 88. We disagree. {192 The court's enlargements of time were permissible under Crim. P. 45b)(1). The jury returned its guilty verdicts on March 11, 2010. On March 25, within the fifteen-day period allowed under Crim. P. 33, the prosecution filed a motion for additional time to file posttrial motions, specifically requesting an order "directing the defense to file any post[ Jeonviection/pre-sentencing motions on or before April 16, 2010 at 5:00 p.m."
{192 The court's enlargements of time were permissible under Crim. P. 45b)(1). The jury returned its guilty verdicts on March 11, 2010. On March 25, within the fifteen-day period allowed under Crim. P. 33, the prosecution filed a motion for additional time to file posttrial motions, specifically requesting an order "directing the defense to file any post[ Jeonviection/pre-sentencing motions on or before April 16, 2010 at 5:00 p.m."
{193 On March 26, 2010, still within the fifteen-day period, defendant filed a motion asking the trial court to "clarify that the deadline requested by the [plrosecution for all post[ Itrial motions includes any motion for a new trial,"
{194 On March 29, 2010, the trial court acknowledged receipt of both motions, stated that it was "fully advised," and extended the posttrial motions deadline to April 16, 2010. Thereafter, the trial court extended the deadline to April 19, 2010, after receiving and granting defendant's motion for extension filed on April 16, 2010. Defendant filed his motion for a new trial on April 19, 2010.
€195 The prosecution's request for enlargement beyond the fifteen-day period was made before the expiration of the original fifteen-day period. Hence, the court was authorized to, and did, grant an extension. See Crim. P. 4656(b)(1). The court also had authority to grant the later requests that were made during the periods that had been extended by the court's March 29 and April 16 orders,. See id.
1196 Contrary to the People's contention, it was not necessary for the court to actually grant the prosecution's motion to extend the deadline before the fifteen-day period expired. Crim. P. 45 states that the predicate for enlargement is the filing of an application (that is, a request) for enlargement within the appropriate period, not the actual granting of the extension.
{197 We therefore conclude that defendant's new trial motion was timely.
B. Admissibility of Affidavit
€198 Defendant attached an affidavit signed by his investigator to his motion for a new trial, The People argue that the trial court properly denied defendant's motion because defendant never established the truth of the hearsay allegations contained in the affidavit We reject the People's contentions.
1. Background
¶ 199 In the affidavit, the investigator asserted that she interviewed an alternate juror after the juror had been dismissed at the conclusion of trial, As discussed in greater detail below, the alternate juror told her that some members of the jury had engaged in juror misconduct.
2. Standard of Review
1200 "When confronted with allegations of irregularity in the jury's proceedings, the trial judge has broad discretion to determine what manner of hearing, if any, is warranted." People v. Mollaun,
3, Law
201 Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. CRE 80l(c) Unless an
T202 Three divisions of this court have previously held that "a defendant must establish the truth of the allegations on which he bases his motion for a new trial," and the "flailure to establish the truth of hearsay allegations contained in an affidavit will warrant denial of a motion for new trial based on alleged juror misconduct." People v. Rogers,
1 203 However, the supreme' court has suggested that the presence of hearsay in an affidavit alleging juror misconduct should not preclude a court from considering the substance of the affidavit.
¶ 204 In Aldrich v. District Court,
1205 In Wiser v. People,
¶ 206 The court's reasoning in Ald-rich and the analysis it undertook in Wiser indicate that a trial court should not disregard and cast aside an affidavit alleging juror misconduct solely because that affidavit contains hearsay. Instead, the trial court should determine whether the affidavit sets forth "factual allegations" that are not "conclusory in nature" to the extent that it can be reasonably said that the party moving for a new trial "acted upon a basis of knowledge, not merely suspicion or hope." Aldrich,
1207 To the extent other divisions of this court have disagreed with this conclusion, we decline to follow them in this instance. See Stokes v. Denver Newspaper Agency, LLP,
4. Application
1208 The investigator’s affidavit unquestionably contains hearsay, as it sets forth out-of-court statements made by the questionably contains hearsay, as it sets forth out-of-court statements made by the alternate juror to the investigator, and defendant offers those statements to prove that various types of juror misconduct occurred. See CRE 801(c). However, the affidavit presented was specific as to at least some of the jurors involved, and it identifies what types of misconduct may have occurred, when it occurred, and where it occurred. Cf. Pena-Rodrigues, ¶¶ 6, 9 (trial court held an eviden-tiary hearing regarding potential juror misconduct when the defendant provided affidavits from defense - counsel alleging the "who, what, when, and where of the allegation" based on its conversations with jurors (internal quotation marks omitted)).
{209 Thus, the affidavit set forth specific "factual allegations" that were "not concluso-ry in nature" and provided "detailled] ... information acquired" by the affiant in her "conversations with the" alternate juror. Aldrich,
1 210 As we discuss further in the sections that follow, the affidavit also set forth allega
{211 Therefore, we reject the People's contention that we should decline to review the merits of defendant's argument solely because of the hearsay contained in the affidavit. Aldrich,
C. Necessity of a Hearing | on. Juror Misconduct
¶ 212 Defendant contends that the allega— tions set forth in the investigator's affidavit are sufficient to require a new trial, In the alternative, defendant requests that this matter be remanded for an evidentiary hearing. We conclude that defendаnt has not sufficiently proved, without a hearing, the allegations set forth in the affidavit so as to warrant a new trial. However, we agree that a hearing is required.
1. Background
{1213 According to the investigator's affidavit, the alternate juror told her:; -
e The alternate and two other jurors (at 'least one of whom was a deliberating juror) became. friends during the course of trial and would walk to the Parkway Condominiums nearly every day for lunch, During their walk, the jurors would discuss the testimony offered at trial "and voted on whether [defendant] was guilty or not guilty."
® -Other unidentified jurors had decided defendant was guilty while the evidence was still being presented at trial.
® On at least one occasion, the alternate -. and two other jurors went to the Park"way Condominiums to watch cars drive by on Speer Boulevard when it was dark. The purpose of the jurors' activity was to see whether “they could tell the colors of the cars." The jurors «"could definitely tell ‘Whlte and 'not white.""
® After deliberations had begun, the alternate juror (who hall been dismissed) .and a deliberating juror travelled to the deliberating juror's home. - "The two of them discussed what was going on during deliberations" and the deliberating juror told the alternate that the jury thought defendant was guilty. At the conclusion of their conversation, the alternate told the deliberating juror to stick with what he believed and to hang the jury if necessary. The deliberating - juror said that he planned to do so.
1 214 In denying defendant's motion for a new trial, the trial court did not make any findings of fact but concluded that the motion failed 'to satlsfy defendant’s burden on 1ts face.
2. Standard of Review
1215 We review posttrial rulings regarding juror misconduct for an abuse of discretion. Pena-Rodriguez, ¶ 13. A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, unfair, or based on an elroneous view of the law. Id. |
1216 A trial court's denial of a motion for a new trial based on the, jury's exposure to extraneous information presents a mixed question of law and fact. See People v. Harlan,
a. General Principles
¶ 217 The Due Process Clauses of the United States and Colorado constitutions guarantee every criminal defendant a right to trial by an impaitial jury. U.S. Const. amends. VI, XIV; Colo. Const. art. II, §§ 16, 25; Dunlap,
¶ 218 Nevertheless, there are limits to a trial court's ability to inquire into allegations of juror misconduct, "CRE 606(b) applies to all civil and 'criminal cases[,]" Stewart in Interest of Stewart v. Rice,
1219 CRE 606(b) contains three exceptions, two of which are relevant here. First, a juror may testify as to "whether extraneous prejudicial information was improperly brought to: the jurors' attention." CRE 606(b)(1). Second, a juror may testify as to "any outside influence that was improperly brought to bear on any juror." CRE 606(b)(2).
b. Extrancous Information
1220 Under CRE 606(b)(1), "a court will set aside a verdict ... because Jurors were improperly exposed to extraneous prejudicial information. where the defendant demonstrates (1) that extraneous information was before the jury and (2) 'a reasonable possibility that the extraneous information would affect the verdict of a typical jury to the defendant's detriment'" Garrison 136 (quoting People v. Holt,
¶ 221 "Generally, an evidentiary hearing should be held to determine whether extraneous prejudicial information was in fact communicated to the jury." Destination Travel, Inc.,
¶ 222 Information is not extraneous if it was "part of the juror's background, gained before the juror was selected to participate in the case and not as the result of independent investigation into a matter relevant to the case." Kendrick,
¶ 223 Thus, any "'legal content [or] specific factual information learned from outside the record [that is] relevant to the issues in a case constitute[s] extraneous prejudicial information improperly before a jury'" Holt,
1 224 To determine whether extraneous information reached the jury, the court may consider evidence "regarding the source of the extraneous information, the manner of its acquisition, its content, and its presence and use in the jury room during deliberations" because such evidence "is admissible under ... CRE 606(b)." ' Harlan,
1225 "If the court's fact-finding, as guided by CRE 606(b), shows that jurors
¶ 226 " term "reasonable possibility" describes a degree of likelihood and implies a realistic possibility that the communication would influence the verdiet of a typical juror'" Id. (quoting People v. Wadle,
1227 The supreme court has identified a number of non-exclusive factors that are helpful in determining whether the requisite degree of prejudice exists,. See Harlan,
(1) how the extranеous information relates to critical issues in the case; (2) how authoritative is the source consulted; (8) whether a juror initiated the search for the extraneous information; (4) whether the information obtained by one juror was brought to the attention of another juror; (5) whether the information was presented before the jury reached a unanimous verdict; and (6) whether the information would be likely to influence a typical juror to the detriment of the defendant.
Id.
c. Premature Deliberations and Outside Influences
11228 While the law regarding extraneous information is well-settled, appellate courts in Colorado have rarely addressed a claim of juror misconduct premised on premature deliberations.
1229 A division of this court has held that a defendant must establish that premature deliberations actually caused prejudice to obtain a new trial, See People v. Renaud,
T230 Beyond the general principle announced in Renaud, appellate courts in Colorado have only addressed situations in which the trial court failed to consider pre-deliberation discovered during trial, People v. Harmon,
1 231 Therefore, we turn to federal authority to guide our analysis, See Stewart,
232 Federal courts draw a line between "internal" and "external" influences on a jury. See Tanner v. United States,
€233 Accordingly, the interest in "[plre-serving the finality of jury verdicts militates strongly in favor of barring post-trial juror assertions of pre-deliberation discussion." United States v. Wiliams-Davis,
285 In Former, the court addresséd a situation in which "jurors engaged in premsa-ture deliberation or made pre-deliberation statements indicating they had already made up their minds" as to the defendant's guilt:
T236 Thus, "the court must ignore any evidence about the supposed actual effects of the statements or conduct ; #. and must rely instead on precedent, experience, and common sense to gauge whether the statements or conduct" were prejudicial. Id.
1237 In determining whether the statements or conduct were prejudicial, "[t]he important thing is not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury." United States v. Klee,
1238 Federal courts have also noted that an alternate juror may become an "outsider who influenced the jury" at the point formаl deliberations begin and the alternate is dismissed. See United States v. Cuthel,
4. Application
1239 We conclude that this matter must be remanded for an evidentiary hearing regarding the potential Juror misconduct that occurred in defendant's case. Defendant has put forth competent evidence, in the- form of an affidavit, which indicates prejudicial extraneous information may have been before the jury. See Kendrick,
(240 The affidavit indicates that at least some. of the jurors who ultimately decided defendant's guilt conducted a type of experiment at the Parkview Condominiums to determine whether they could tell the color of various cars that drove past on Speer Boulevard. Such information, if true, was relevant to the issues at trial because, while the prosecution presented evidence that defendant was driving a white Tahoe, a witness testified that he had seen a green or brown SUV speed down Speer Boulevard after the shoot ing. Defendant presented evidence that Daniel Harris had travelled with friends in a green SUV on the night of the shooting.
. §241. Therefore, any information learned by the jurors as a result of their experiment was extraneous information that was relevant to the issues in the case and a hearing is required. See Harlan,
$243 Furthermore, the affidavit perinits the inference that the jurors may have prematurely decided the guilt of defendant. : We agree that the cases requiring inquiry into the possibility of premature juror deliberations, discovered postverdict, are extremely rare. See Williams-Davis,
4 244 We are particularly concerned that the same jurors who may have conducted the extraneous experiment may also have been voting on the guilt or innocence of defendant on a daily basis throughout the trial, It is clear that a court may not inquire as to the actual effect of any pre-deliberations under CRE 606(b). And we agree that the mere fact that pre-deliberations occurred is likely insufficient to establish prejudice. Cf. Williams-Davis,
A 245 However, we are also persuaded that a court. should be able to assess the timing, frequency, and substance of these types of discussions when it decides whether a defendant has received a fair trial, See Farmer,
4 246 Because the trial court did. not make any findings with respect to its decision to deny defendant's motion for a new trial, remand is required. While defendant has set forth sufficient factual information to trigger concern regarding his right to a fair trial, he has not proven extraneous information was "in fact communicated" to one or more of the jurors. Destination Travel, Inc.,
«4247 The court on remand should inquire as to whether misconduct actually occurred, whether information obtained by the jurors participating in the misconduct was disseminated to other jurors, and, if so, whether that information reached the jury before it came to a unanimous verdict, See Jadlowe,
248 We reverse the trial court's ruling denying defendant's motion for a new trial and remand for an evidentiary hearing on the issue of juror misconduct. If misconduct occurred and there is a reasonable possibility that defendant was prejudiced by it, the court shall order a new trial, If not, the judgment of conviction remains affirmed, subject to defendant's right to appeal the order.