People v. CohenPeople v. Cohen
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
No. 15CA0982, People v. Cohen — Evidence — Admissibility — Opening the Door Doctrine — Hearsay — Relevancy and Its Limits; Constitutional Law — Sixth Amendment — Confrontation Clause
A division of the court of appeals addresses the limits of the “opening the door” doctrine — a fairness-related trial doctrine via which one party mаy introduce otherwise inadmissible evidence after the other party first “opens the door” to it. The division holds that this doctrine is limited; any otherwise inadmissible evidence introduced after one party opens the door must be confined to preventing any unfair prejudice or misleading impression that might otherwise result. The division also holds that certain statements introduced in defendant’s trial went far beyond anything allowed by the opening the door doctrine; were inadmissible on hearsay, relevance, and undue prejudice grounds; and violated her
I. Background
¶ 2 Defendant prаcticed law in Boulder, specializing in immigration law. The People charged her with fifty-four counts of theft, each relating to her alleged mishandling of client funds. More
¶ 3 The People ultimately tried defendant on twenty-one of the charges. The prosecution called over a dozen witnesses, including several of defendant’s former clients, mаny of whom testified as to their payments, defendant’s failure to perform services, and their difficulty getting in touch with her.
¶ 4 But a significant portion of the eleven-day trial focused on defendant’s ethical obligations under the Colorado Rules of Professional Conduct (RPC) and her failure to comply with those obligations. For example, the prosecution presented evidence that defendant spent client payments before earning them and often deposited as yet unearned payments into her personal accounts rather than into her attorney trust (COLTAF) account.1 OARC
¶ 5 The district court instructed the jury on the elements of theft and gave an instruction containing language from one of the Rules of Professional Conduct relating to the handling of client funds. That instruction (Instruction 11) quoted
¶ 6 After some deliberation, the jurors asked the court whether they could use the OARC RPC charging decisions to inform their decision-making; whether the OARC’s standard for verifying the receipt of money by an attorney was the standard they should apply; whether failure to deposit client funds into a COLTAF account before earning fees constitutes “intent to permanently deprive” (one of the elements of theft); and whether earning fees at a later time can undo a prior COLTAF violation. The jurors also indicated that they were deadlocked on at least one charge. Perhaps without consulting defense counsel (the record isn’t clear whether the attorneys were even in the room; defendant claims they weren’t), and without defendant present, the court responded to the jurors’ questions noted above by merely telling them they had all the evidence they were to consider, they should follow the instructions, and these were issues for them to decide. The court (also apparently without consulting counsel and outsidе counsel’s
¶ 7 The jury continued deliberating and returned guilty verdicts on thirteen counts. It hung on one and acquitted on the remaining seven.
II. Discussion
¶ 8 Defendant contends the district court erred by (1) admitting the OARC complaints; (2) including the instruction about an attorney’s ethical obligations vis-a-vis earning fees and handling client funds; (3) allowing another immigration attorney to respond at length to a juror’s question about defendant’s “red flags”; (4) responding to jurors’ questions without consulting with her counsel and outside her and her counsel’s presence; and (5) giving the jury a modified Allen instruction without consulting her counsel and outside her and hеr counsel’s presence. We agree with defendant that reversal is required based on the court’s erroneous admission
A. OARC Complaints
¶ 9 First, defendant contends that the district court erred by admitting the three OARC complaints into evidence. She argues that the complaints were inadmissible for a number of reasons. We conclude that while certain facts pertaining to the complaints had some relevance to the charges, the complaints themselves are rеplete with inadmissible hearsay. We also conclude that allowing all this hearsay into evidence violated defendant’s Sixth Amendment right to confrontation, and that, on the whole, the danger of unfair prejudice, confusion of the issues, and misleading the jury substantially outweighed the complaints’ limited probative value. Because the error in admitting the totality of these complaints wasn’t harmless, we must reverse defendant’s convictions.
1. Standard of Review
¶ 10 Ordinarily, we review a district court’s evidentiary rulings for an abuse of discretion. Dunlap v. People, 173 P.3d 1054, 1097 (Colo. 2007); People v. Clark, 2015 COA 44, ¶ 14. But to the extent such rulings impact a defendant’s rights under the Confrontation
¶ 11 The People concede that defendant preserved hearsay, Confrontation Clause, and relevance/undue prejudice objections to the complaints. So if we conclude that the court erred in applying the Colorado Rules of Evidence, we must then reverse unless the People show that the error was harmless, meaning that there is no reasonable possibility that it contributed to defendant’s convictions. Pernell v. People, 2018 CO 13, ¶ 22; see James v. People, 2018 CO 72, ¶ 18. If we conclude that the court violated defendant’s constitutional right of confrontation, we must reverse unless the Peoplе show that the error was harmless beyond a reasonable doubt. Nicholls v. People, 2017 CO 71, ¶ 17; Hagos v. People, 2012 CO 63, ¶ 11.3
2. Applicable Law
¶ 12 Hearsay — a statement by one other than the declarant while testifying that is offered to prove the truth of the matter asserted — is generally inadmissible.
¶ 13 The Confrontation Clause says that in “all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
¶ 14 Even apart from hearsay and Confrontation Clause limitations, evidence must, of course, be relevant — that is, it must have some tendency to make the existence of a fact of consequence more or lеss probable.
3. The Complaints
¶ 15 OARC filed its first complaint against defendant in February 2011. That complaint alleged that defendant had failed to disclose information on her application to the Colorado bar, including her maiden name, certain employment history, and past due debts; that she had practiced law without a license; that she had testified
¶ 16 During defendant’s trial in this case, the prosecutor sought to admit a copy of this complaint. Defense counsel objected based on relevance, hearsay, and confrontation. The court admitted the complaint over these objections but didn’t say why.
¶ 17 OARC filed two more complaints against defendant in 2013 and 2014, respectively. These complaints included information similar to the criminal allegations against defendant (that she had kept clients’ money despite doing little or no work on their cases), but discussed former clients not named in the criminal charges for which she was on trial.4 In total, the second and third complaints alleged seventy-eight RPC violations. But in addition to the information that tracked allegations in this case, the OARC complaints contained other negative allegations against defendant,
¶ 18 Defense counsel objected to the admission of the second and third complaints on grounds of prejudice, relevance,
4. Analysis
a. Hearsay
¶ 19 The complaints are replete with OARC’s and defendant’s former clients’ assertions of unethical conduct; many of the assertions don’t have any bearing on whether defendant cоmmitted theft. To be sure, the fact that OARC had informed defendant of her ethical obligations concerning handling of client funds bore somewhat on defendant’s knowledge and intent, but the lengthy complaints went far beyond those issues. Indeed, the first
¶ 20 We aren’t persuaded by the People’s contention that the complaints werеn’t hearsay because they were admitted to show defendant’s intent. The first complaint had nothing to do with mishandling client funds. It’s true that defendant’s receipt of the second and third OARC complaints put her on notice of her ethical obligations, and therefore cast some light on her intent. But the complaints themselves weren’t necessary to make that point and, as
¶ 21 Nor are we persuaded by the People’s argument that the OARC complaints were admissible because defense counsel opened the door to them during opening statements. Otherwise inadmissible evidence can become admissible if the defendant first “opens the door” to it. See Golob v. People, 180 P.3d 1006, 1012 (Colo. 2008) (“When a party opens the door to otherwise inadmissible evidence, his opponent may then inquire into the previously barred matter.”).
¶ 22 Defense counsel had implied during opening that the OARC investigations began because of “an inflammatory letter” sent by defendant’s child’s father and that the investigator was biased against her. And so, the People say, the complaints could come in. We aren’t persuaded.
¶ 23 The concept of “opening the door” isn’t unlimited. It
¶ 24 This limited purpose is evident in the supreme court’s reasoning in People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979). In that case, during cross-exаmination, defense counsel asked an officer if he had drawn his gun when he approached the defendant.
¶ 25 Similarly, in People v. Davis, 312 P.3d 193 (Colo. App. 2010), aff’d on other grounds, 2013 CO 57, defense counsel asserted during his opening statement that a prosecution witness only provided helpful information to the police officer after her interview had become confrontational (suggesting that she had been coerced into changing her story). Id. at 196-97. A division of this court held that this opened the door to the officer’s response to the
¶ 26 These cases tell us, consistent with the out-of-state authority cited above, that when one party injects a particular issue into a case, the opposing party may introduce otherwise inadmissible evidence only to the extent necessary to “rebut any adverse inferences which might have resulted,” Tenorio, 197 Colo. at 146, 590 P.2d at 958, or to correct “an incorrect or misleading impression.” Golob, 180 P.3d at 1012.
¶ 27 In this case, the prosecutor actually discussed the OARC investigations before defense counsel did. But in light of the purpose of the “opening the door” rule, we’ll assume that the defense’s implicit characterization of the investigations as grounded in bias opened the door to further evidence on the matter.
¶ 28 Evidence that the complaints existed and evidence of why they were filed was admissible to rebut the implication that OARC had a
¶ 29 In sum, we conclude that the complaints were, in very large part, inadmissible hearsay. It follows that the court erred in admitting the complaints, or at least in admitting them in their entirety.
¶ 30 A statement is testimonial for Confrontation Clause purposes if it was made under circumstances that would lead an objective witness to believe that the statement would be available for use at a later trial. United States v. Summers, 414 F.3d 1287, 1301-02 (10th Cir. 2005); Compan v. People, 121 P.3d 876, 880 (Colo. 2005), overruled on other grounds by Nicholls v. People, 2017 CO 71.
¶ 31 The hearsay statements in the complaints by witnesses were testimonial. The declarants volunteered information to OARC knowing that their statements could be used to support an investigation of — and possible sanctions against — defendant. And they could have anticipated that a criminal investigation and criminal charges would result. See Davis, 547 U.S. at 821; People v. Cevallos-Acosta, 140 P.3d 116, 129 (Colo. App. 2005) (the declarant’s intent should be considered when determining whether a statement is testimonial). The People don’t argue otherwise.
¶ 32 Only one of the declarants testified at trial. Defendant therefore didn’t have an opportunity to question most of them about statements in the complaints. As a result, admitting the complaints
c. Danger of Unfair Prejudice
¶ 33 We also conclude that, even if we assume portions of the complaints had some relevance, that relevance was substantially outweighed by the danger of unfair prejudice. As discussed, admitting the complaints themselves wasn’t necessary to show defendant’s knowledge and intent or to rebut any implication of bias. And they contained a great deal of information about unrelated alleged ethical violations. Perhaps more importantly, the complaints added to the impression, clearly conveyed by the prosecution, that the case was about whether defendant had practiced law in accordance with her ethical obligations. Those ethical obligations, however, didn’t set the standard for criminal culpability. As discussed below, the сomplaints, and much of the other evidence, actually confused the jurors; they didn’t know whether a breach of ethical obligations established elements of the theft charges. Though we must assume the maximum probative value and minimum unfair prejudice of the evidence, see People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002), the balance in this case
d. Harmlessness
¶ 34 Having determined that the district court erred, we must consider whether the People have shown that the error was harmless beyond a reasonable doubt. They haven’t.6
¶ 35 No doubt, there was sufficient admissible evidence thаt would support the guilty verdicts. But the prosecution spent a considerable amount of time, both during the evidentiary part of the trial and in closing, using the OARC complaints to demonstrate that defendant routinely lied and violated ethical rules. That evidence and argument painted defendant as dishonest and unethical. Indeed, the first complaint, which didn’t have anything to do with alleged mismanagement of clients’ money, established only that OARC believed defendant had lied repeatedly in unrelated matters.
¶ 36 The jurors asked a number of questions indicating that the OARC evidence deeрly impacted their view of the case; they seemed
¶ 37 True, the jury acquitted defendant of some charges. But, contrary to the People’s suggestion, that doesn’t preclude the existence of a reasonable possibility that the inadmissible evidence influenced the jury’s guilty verdicts. And we conclude that there is such a possibility. We must therefore reversе the judgment.
B. Jury Instructions
¶ 38 We address defendant’s contention regarding the instruction on handling client funds because the issue whether such an instruction is appropriate is likely to arise in the event of a retrial.
¶ 39 As noted, in addition to the instructions defining the elements of theft, the court gave the jury an instruction — Instruction 11 — quoting provisions of the RPC and defining when an attorney “earns” the money her clients pay her. The court provided no explanation of how the jury was to apply that instruction. And the jury indicated it didn’t understand how to apply it: the jurors submitted a question to the court asking whether failure to dеposit client funds into a COLTAF account established the intent element
¶ 40 A court must accurately instruct the jury on the law relevant to each issue presented, but it must not give an instruction that misstates the law or “unduly emphasizes some part of the evidence.” People v. Ellsworth, 15 P.3d 1111, 1116 (Colo. App. 2000). If the court gives the jury an instruction that contains technical information separate from the elements of the crimes at issue, the court should explain the instruction so that the jury can understand what it means and how to apply it. See Pueblo Bank & Tr. Co. v. McMartin, 31 Colo. App. 546, 549, 506 P.2d 759, 761 (1972) (it was reversible error to include language of a highly technical statute in the jury instructions without sufficient explanation how the jury could properly interpret its meaning and apply it). And, when a jury asks a question, an additional instruction is appropriate unless
(i) the jury may be adequately informed by directing [its] attention to some portion of the original instructions; (ii) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or (iii) the request would call upon the judge to express
an opinion upon factual matters that the jury should determine.
Leonardo v. People, 728 P.2d 1252, 1255 (Colo. 1986).
¶ 41 The language of Instruction 11 wasn’t objectionable. The instruction accurately stated Colorado’s ethical rules on how an attorney should handle client funds. And it could have helped the jurors understand the elements “without authorization” and “intent” in the context of the case. But the instruction was, at best, incomplete: the district court didn’t tell the jurors how to use the instruction and what its limits were. In not doing so, the court erred.
¶ 42 The jury’s confusion about how to apply Instruction 11 was evident. Even after hearing all the instructions and deliberating, we know that at least one juror was unclear on how a violation of attorney ethical rules would impact the determination of defendant’s guilt. At that point, the district court had another opportunity to tell the jury how it could consider defendant’s failure to deposit client funds into her COLTAF account. The court should have done so.
¶ 43 On remand, in the event of a new trial, any instruction along these lines must be accompanied by an explanation of how it bears on the issues that the jury must resolve and must make clear that violations of ethical rules don’t, by themselves, prove any of the elements of thеft.
III. Conclusion
¶ 44 We reverse the judgment and remand the case for a new trial. In the event of a new trial, the court should maintain a tight rein on what evidence is introduced and how the jury is instructed so that the trial doesn’t again devolve into largely an extended inquiry into defendant’s compliance with her ethical obligations.
JUDGE TERRY and JUDGE GROVE concur.