*1 argument appeal. court’s award will not be disturbed on reject husband’s We anger Marriage Lishnevsky, In re regarding his toward finding court’s (Colo.App.1999). finding “unsupportable” in view of the wife is therapist that he did not need previous of a equipped Because the trial court is better treatment. The trial anger management questions to determine of fact and to make a conflicting evidence is resolution of court’s adjudica- complete investigation full and and Marriage In re binding on review. tion, request appellate wife’s for an award of Bowles, Thus, (Colo.App.1995). attorney presented to the trial fees should be therapist’s to the extent Watson, court. See Watson 135 Colo. special with those of the views conflicted (1957). Accordingly, the trial parental responsibilities advocate and court is directed to hear wife’s motion for evaluator, resolution of the the trial court’s attorney proper application, fees on and to binding conflict on this court. make such order as the facts and circum- stances warrant. Attorney Fees Appellate X. judgment perma- is reversed as to the appellate requests an award of attor- Wife order, restraining nent mutual case ney §§ and 14- pursuant fees to 13-17-102 is remanded to the trial court for further 10-119, conclude that wife is C.R.S.2005. proceedings on that order and for consider- attorney to an award of fees entitled request appel- ation of for an wife’s award of 13-17-102, request § for pursuant to but attorney pursuant § late 14-10-119. fees to § pursuant 14-10-119 an award of fees judgment is affirmed in all other re- by the trial court on should be considered spects. remand. A. Lack of Justification Substantial Judge Judge TAUBMAN and LOEB concur. 13-17-102(4), C.R.S.2005, § Pursuant if, attorney upon assess fees shall itself, any party
motion of or the court attorney party brought or
finds that an or action, thereof, any part an or
defended justification.
lacked substantial 13-17-102(6), C.R.S.2005, §
pursuant appearing attorney
party who is without attorney shall not and is not himself an Colorado, PEOPLE the State of attorney the court finds assessed fees unless Plaintiff-Appellee, party clearly reasonably or knew defense, should that his action or have known thereof, substantially part frivo- KINNEY, Defendant-Appellant. James lous, substantially groundless, or substantial- Further, No. 04CA0781. ly has vexatious. husband succeed- respect restraining with mutual ed Appeals, Colorado Court of so, issue, order while the issues raised Div. I. extended, not without are somewhat he was appeal. success June 2006. deny request Accordingly, we wife’s for an Certiorari Denied Nov. 2006. § attorney pursuant
award of fees 13-17- B. 14-10-119 Section 14-10-119, §
Under the trial court has fees, awarding
broad discretion such discretion,
absent an abuse of such
3X9 ing juror upon finding service that trial inconvenience, hardship taking into ac- trial.”). expected count length of the hardship What constitutes ais determination within the discretion of the trial court. See *3 Reese, People v. (Colo.App.1983). Trial days. here scheduled for At was five selection, beginning the trial court inquired anyone whether felt “that he or she hardship” suffer undue or extreme if length selected to serve for that of time. jurors responded they Several would. here, V, juror Suthers, General, at issue Attorney Juror told the John Kath- W. teacher, court Hansen, get she was a could not Attorney General, a erine A. Assistant Denver, Colorado, days, substitute for more than three and was Plaintiff-Appellee. for type testing scheduled to do a of assessment Kaplan, David S. Colorado State Public that a substitute could not handle. The trial Defender, Manning, Deputy Andrea R. State jurors ruling told the it would defer on Defender, Denver, Colorado, Public for De- until excusáis after it had conferred with the fendant-Appellant. attorneys. by Judge Opinion recess, VOGT. After the lunch the trial court did immediately issues, rule on hardship Defendant, Kinney, appeals James attorneys began their voir dire. judgment of conviction entered on a During questioning by prosecutor, Juror finding guilty him verdict sexual assault. point V had indicated at one that she was not We affirm. thinking prosecutor’s question about the be- up a Defendant drove to woman on the cause her mind things. was on other She spoke street and with her. She went with might also stated that she protective feel apartment, they him to his where had sex. defendant because she and he police The woman later told that defendant same race. sexually her. assaulted Defendant After questioning, prosecutor further claimed the encounter consensual. cause, challenged expressing Juror V for trial, At two other women testified that doubt that she could fair impartial be a sexually defendant had assaulted them. juror. objected. Defendant The court then optometrist excused Juror and an V who had I. hardship, explaining ju- claimed to the other Defendant contends the trial court rors that violated the two who were excused “would right process by improperly his probably to due a being juror excus- have better time a in ing juror a for cause. We a conclude the trial different case at a different time.” juror court excused the on the basis of hard- following court later made the record ship, and that it did not abuse its discretion excusing its reasons for Juror V: doing so. is a [Juror V] school teacher. ... She may
A trial court prospec excuse a language being used some protec- about juror grounds hardship, tive on the even tive of blacks because she is of the same objection over the of a My defendant. grounds race. main granting for Isom, (Colo. challenge WL 3211628 for cause on [Juror V] was 03CA2518, 1, 2005); App. § No. Dec. 13- abundantly because she made it clear 71-121, (“Before impan a C.R.S.2005 is terms of time conflict that [she] is a eled, teacher, the court shall inform if they doing some sort expected trial to last more than testing, three trial and while a [assessment] substi- days juror perform- excuse a tute regular teaching, could handle the acquittals having on criminal substi- not comfortable
she arising of the sexual assaults. testing- I had out doing the ... tute ability to concentrate about her concern testified, prosecu- the witnesses Before case.... hat is the main [T] prohibit tion motion limine to filed a' longer why no serv- [Juror is]V reason or reference to the outcome of comment on this ing on case. the two sexual assault cases. De- of, or an in- argued fendant that evidence with defendant doWe regarding, acquittals struction was neces- must deemed have ex sary preclude speculating response for V cause cused Juror he had convicted in about whether though Even prosecutor’s challenge. prosecutor responded those cases. initially going it was stated that *4 acquittal fact and of irrelevant would challenges” V and the “grant to Juror simply jury. confuse serve to that statement optometrist, the context of explanation make subsequent court’s and the jury declined to instruct for hard it that Juror excused clear V was Instead, requested. had it as defendant indicated it previously court had ship. The prohibited sides be ruled that both issues, hardship ruling on the would defer “talking or even about the outcome Juror Vs excusal at it addressed and talking fact had about the that been juror, op it another same time excused brought Additional against defendant.” e tometrist, similarly hard claimed who ques ly, be although th witnesses could ship. testimony prior “hear tioned their about “prior ings,” to be no reference to sum, questioning there was we have for In no basis trials.” for court’s stated reasons its dis- the trial V, and, light of Juror Vs of Juror missal regarding then The women testified circumstances, dismissal explanation of assaults, gave repeated court and the and hardship was of discretion. for not an abuse testimony stating that could Reese, (no P.2d 14 People supra, v. 670 at showing purpose used “for the of lack “for cause” discretion to excuse abuse of scheme, consent, plan intent of common or or
juror hardship). claimed financial who In re- knowledge.” refusing defendant’s acquittal for an instruction at request newed
II. evidence, the court not- the conclusion of testimony that heard no that would ed it had pro his contends due Defendant next prior ruling. The revisiting its warrant by rights were court’s cess violated ruling again prior to alter when declined its evidence, him to allow to introduce refusal during note out a deliberations sent instructed, acquit he was that request “previous trial that included a to see sexually assaulting the two women of ted transcripts.” previously that assault who testified he had disagree. ed them.
B.
A.
prior
acts
otherwise
Evidence
404(b)
trial,
qualifies
CRE
filed a notice
for admission under
prosecution
Prior to
by the defendant’s
not rendered inadmissible
of intent
to introduce evidence
defen-
arising out
sexually
a woman in 1999
dant had
assaulted
Wallen,
People
those acts. See
v.
another woman in 2002. Defendant ob-
acquittal in
jected,
(Colo.App.1999)(defendant’s
hearing
was held.
182
collaterally estop
by a
ease did
preponderance
court found
the evi-
evidence); People v.
admitting prior act
had occurred.
dence that the
assaults
(same);
(Colo.App.1990)
240
Conley,
P.2d
proffered
It
evidence was
concluded
States,
404(b)
493 U.S.
Dowling United
under
see also
admissible
CRE
(1990)
(Colo.1990),
668, L.Ed.2d
Spoto,
and that
110 S.Ct.
(introduction
crime
relating to
of evidence
inadmissible
the evidence
not rendered
previously
acquit-
introduced);
which
quitted
defendant had
been
conduct is
United States
Tirrell,
jeopardy
(7th Cir.1997)(Dowl
ted does not violate double
or due
innocence of
and its exclusion
hampered
ability
respond
*5
propensity
sexual assault victim’s
testimony).
jury
Whether the
must be informed of the
acquittal
defendant’s
in circumstances such
Two reasons
explain
have been cited to
presented
as those
here has not been ad- why judgments
acquittal
of
generally
are not
dressed Colorado.
admissible to rebut inferences that
be
drawn from evidence that was the basis of a
Dowling,
jury
In
had been instructed
First,
trial.
judgments
acquittal
of
petitioner
that
acquitted
had been
on the
Second,
hearsay.
are
judgments
acquittal
of
prior charge, and it had also received an
they
are
prove
irrelevant because
do not
concerning
purpose
the limited
innocence,
simply
but
prior
govern-
for which
show that the
act
being
evidence was
ment did not meet its
holding
proving guilt
offered.
In
burden of
relating
that evidence
to
beyond a
reasonable doubt.
crime of which a
See United
defendant had been ac
Wells, supra.
States v.
quitted
jeopardy
did not violate double
process,
Supreme
due
Court observed
required
Courts that have
an instruction
that such a conclusion
appropriate
“[e]s
acquittal
gen
have
pecially
light
limiting
of the
instructions
erally
so in
done
circumstances where the
provided by
judge.”
the trial
Dowling, su
jury
charges
had learned that criminal
had
pra,
353, 110
atU.S.
at
S.Ct.
674.
against
been filed
In
defendant.
such
circumstances,
Courts that have considered the issue
held,
the courts have
generally
Dowling
concluded that
acquittal
does not
of the
is relevant
to counter the
require
that the
be
jury’s potential
advised
the defen
conclusion that the defendant
acquittal,
dant’s
and that
trial courts have
had been convicted in
prior
cases. See
determine,
discretion to
case-by-case
on a
Bedoya,
Ill.App.3d
basis,
acquittal
whether the
is relevant
Ill.Dec.
758 N.E.2d
(2001)(where
should be admitted.
See United States v.
had received instruction
Wells,
(8th Cir.2003) (evidence
acquittals,
it then to fashion reme-
and for
dy
acquit-
for an
that would obviate the need
tal instruction.
that have con
with those courts
persuaded
the court’s
Nor
we
Dowling
require
cluded that
does
an
Although
initial determination must be deemed
acquittal.
told
jury’s
“limiting abuse
discretion because
approved
Court
court,
question requesting “previous trial
tran-
given by
it did
instructions”
noted
scripts.” As the
signifi
further
not comment
on the relative
confirms,
not,
parties
had been “care-
instructions;
record
and it did
of the two
cance
referencing transcripts
tran-
ful about
as
any event,
process viola
hold that a due
proceedings,” which
scripts of earlier
could
tion
have occurred without an
Rather,
encompass
proceedings in
earlier
this case.
has ob
one court
instruction.
as
jury’s
transcripts
served,
limiting The
reference
“trial”
did
Dowling’s
reference
contended,
not,
necessarily
as defendant
simply to “rein
instructions was intended
jury thought
there
show
force the
conclusion
defen
[Court’s]
at
he had
convicted.
trials which
rights were
violated.”
United
dant’s
Smith,
at 462.
supra,
145 F.3d
States
emphasize
advising
Finally, we
*6
of
the
the defendant’s
any
requirement that the
Absent
case
the
cases,
not be error
where
acquittal in
learn of the defendant’s
all
the
was
determined that
relevant
given
inform
in a
ease
whether to so
substantially
its relevance was
the sound discretion
is a matter committed to
any countervailing
outweighed by
consider
court.
v. Tir
of
See United States
403; Dowling, supra.
See
Ibarra,
ations.
CRE
rell, supra;
People
also
v.
that,
only
present
in the circumstances
(Colo.1993)(triaI
hold
courts
accorded
P.2d 33
here,
contrary
ruling
court’s
to the
ed
determining
considerable discretion
not an
of
value, abuse
discretion.
evidence,
probative
relevancy its
prejudicial impact;
its
to show abuse
reversal,
warranting
appellant
discretion
III.
evidentiary ruling was
must
establish
unpersuaded by de
We are likewise
unreasonable,
arbitrary,
un
manifestly
or
the trial court vio
fendant’s contention that
fair).
pro
rights
his
when it
lated
confrontation
here, we con-
Applying those standards
cross-examining
him
witness
hibited
within
trial court’s discretion
clude was
charge.
regarding
pending misdemeanor
of,
allow
or instruct the
to refuse to
part of
right
to cross-examine is
acquittal in
jury regarding,
guaranteed
right to confront witnesses
two
sexual assault cases.
by the United States and Colorado Constitu
and con-
reviewed
(Colo.2004).
People
Fry,
charge testimony. and the witness’s King, 179 Colo. P.2d Finally, defendant contends the trial court (1972) (trial court should allow cross-exami allowing jurors erred in place tran- prosecution nation where charged witness is scripts of audiotaped his statement their with prosecution or threatened with criminal notebooks before the close evidence. We for other unrelated offenses and witness’s find no basis for reversal. testimony against might defendant be influ trial, During jurors heard audio- of, of, by promise hope expectation enced or taped interview with giv- defendant and were immunity leniency respect with pend transcripts en of the interview. Defendant Caldwell, ing charges); People v. objected allowing keep (Colo.App.2001)(“We fail to discern transcripts tape after the played. ease, how pending another not involved in objection. trial court overruled the agreement, plea and the outcome of appeal, On defendant dispute does not dependent which upon testimony was not *7 jurors the transcripts were entitled to of the matter, the instant probative would be audiotapes to assist them in following the bias, motive, prejudice. Without such a tapes they while played, were People see v. connection, the testify witness would not be Rogers, 68 P.3d (Colo.App.2002), 486 and he ing out possible of fear or concern of jeopar also concedes that exhibits admitted at trial dy matter.”); pending outcome of the may generally be taken into the room People Vialpando, also v. during Isom, People deliberations. See v. (Colo.App.1990)(counsel may properly However, supra. he asserts that allowing propound questions to a witness that can jurors keep the transcripts in their note- jury’s cause a in doubt the mind as to the permitted books unduly them to focus on a credibility, witness’s when there is no reason single piece “likely of evidence and encour- able basis in fact for interrogation). that aged predeliberation” part. on their case, In this sought defense counsel leave question prosecution a regarding witness a We need not decide whether the tri trespass misdemeanor criminal charge pend- al court in allowing jurors erred keep the ing against in county. another Defense transcripts the in their notebooks. Even if argued counsel that the did, cross-examination we assume that it defendant has not necessary to determine whether the prejudiced shown how he was by the error. prosecution promised had the nothing witness There is whatever in the record to leniency in the pros- support misdemeanor case. The speculation keeping that
325 ruled “likely courts have not whether in the en- Colorado transcripts notebooks the of a defendant’s ac- must be informed couraged predeliberation.” were they quittal. day that should not each instructed any opinions form until the case or discuss that considered mat Those courts concluded, presume and we evidence was trial court must ter have concluded they the court’s instructions. See heeded basis, determine, case-by-case whether (Colo.2005). 114 People, v. P.3d 845 Medina acquittal of the is relevant and the evidence
Therefore, any showing that defen absent should be admitted. See United States affected, rights Wells, (8th Cir.2003); there substantial were dant’s 347 F.3d United 35(e); (1st Smith, Cir.1998); C.A.R. basis for reversal. See is no States v. F.3d (Colo. (Alaska 2001). State, Stephenson, Hess v. (inclusion information App.2001) notes, of erroneous majority As the juror was not reversible error recognized, in notebooks an instruction the de prejudice). did not show required where defendant acquittal generally fendant’s jury has that where the learned judgment of is affirmed. conviction charges against the had been filed defendant. recognized of an Courts have that evidence Judge concurs. RUSSEL acquittal in cases is relevant those to counter * Judge part NEY concurs in and dissents had jury’s conclusion that the defendant part. E.g., in the cases. Peo been convicted 926, Bedoya, Ill.App.3d ple 259 Ill.Dec. concurring Judge part NEY (2001). 243, N.E.2d 366 dissenting part. Here, expressed concern I, III, TV of the parts I concur with always danger inherent there is majority opinion. part I dissent 404(b) use CRE evidence for an will that under facts of II because I conclude improper purpose. See CRE ease, its trial court abused discretion this process rights defendant’s due and violated fully recognized also permit any on or when refused instruct if possible prejudice to defendant of defendant’s both evidence speculate permitted to whether 404(b) relating cases to the CRE witnesses. against him as a brought result 404(b) by related the CRE wit- events acts I nesses, whether an and the court considered under qualifies otherwise for admission CRE advising jury of 404(b) collat is not admission barred Further, required. estoppel ac because the defendant’s eral sup- giving an instruction to court considered arising out of quittal on criminal 404(b) limiting plement the standard CRE States, acts. v. United those spec- “not to instruction to admonish 110 S.Ct. 107 L.Ed.2d 493 U.S. surrounding ulate as to circumstances (1990) petitioner (jury was instructed in this particular incident or incidents charge arising acquitted on had been *8 However, give did not this case.” the court in the events described testi instruction. mony, and the Court concluded admis of those events did sion evidence granting prosecution’s In motion process); jeopardy or due Peo violate double any instruction on limine evidence or to bar Wallen, (Colo.App.1999); P.2d ple v. as to prior acquittals the events Conley, (Colo.App People 404(b) testimony, the in the CRE described .1990). intro- prohibited sides from both charges previous ducing any evidence I also instruction about required. brought against defendant or always had been acquittal is not * 24-51-1105, § Sitting by assignment C.R.S.2005. Chief Justice under Const, VI, 5(3), § provisions Colo. art. charges parties had been tried. The then request renewed his for an instruction testimony instructed to refer to advising in the acquittal, of his which was
previous simply “testimony” cases as again by without denied the court. elaboration using and to avoid the terms Where, here, as jury speculates as to “trial” “charges.” fully Both sides com- charges and trial arising out of CRE plied with the court’s ques- instructions in 404(b) incidents, I conclude that it is an 404(b) tioning the CRE witnesses and re- by abuse of discretion the trial court to re- prior testimony ferred to their hearings.” “in fuse to instruct a as to the defendant’s gave limiting The court also acquittal of charges. those I would therefore 404(b) prior to each CRE witness’s testimo- set aside defendant’s conviction and remand ny: this case to the trial court for a new trial. limiting A instruction is an instruction of
law give you which I will at this time explains you
which how are to view cer-
tain being evidence that is In admitted. particular
this case there is a limitation
upon you evidence that hearing particular
[this witness]. This
may be used as evidence for purpose consent, showing lack of plan common scheme, knowledge, you intent or Colorado, PEOPLE of the State of
should consider as evidence for no Plaintiff-Appellee, purpose. other 404(b) because the two CRE wit- nesses were the first witnesses and the Tommy VASQUEZ, Defendant-Appellant. heard no therefore evidence of the of- here, fense for which charged defendant was No. 03CA1821. had no context in place which to this instruction. Appeals, Colorado Court of Further, 404(b) the CRE witnesses related Div. I. involving defendant, the events but subsequent also involving reports events June 2006. police, investigator, conversations with an Rehearing Aug. Denied 2006. and, women, as to one of the pictures nude police taken and the details of her * Certiorari Denied Nov. examination, medical including reference to a rape Therefore, kit. likely it was speculate there was some events, up
follow to these including the filing
of charges subsequent and a trial.
I therefore conclude that the trial court’s
good faith effort to limit the testimony and
exclude evidence of the
and trial protect did not defendant from the
jury’s speculation were filed and
a trial was held. The record demonstrates *9 speculated, but also
concluded that in fact there had been a trial.
During jury requested deliberations the “to transcripts.” Defendant
*Justice participate. EID does not