Brooke E. ROJAS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
Supreme Court Case No. 20SC399
Supreme Court of Colorado.
February 22, 2022
504 P.3d 296
En Banc
Attorneys for Respondent: Philip J. Weiser, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado
En Banc
JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE MÁRQUEZ, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE SAMOUR joined.
¶1 Today, we discard a troublesome relic from Colorado‘s common law of evidence: the res gestae doctrine.
¶2 Although it has morphed over time, the res gestae doctrine these days is often used as a shortcut for admitting character evidence about criminal defendants. While we seek to ensure that defendants are tried for the crimes with which they‘ve been charged and not for seeming to have a propensity to engage in criminal conduct, “[c]riminal occurrences do not always take place on a sterile stage.” People v. Lobato, 187 Colo. 285, 530 P.2d 493, 496 (1975). So, res gestae evidence — septic though it sometimes may be—has been admitted because it is “linked in time and circumstances to the charged crime” or “is necessary to complete the story of the crime for the jury.” Zapata v. People, 2018 CO 82, ¶ 58, 428 P.3d 517, 530 (quoting People v. Skufca, 176 P.3d 83, 86 (Colo. 2008)); People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994). In short, we have treated res gestae evidence, in various ways, as intrinsic to the charged offenses and therefore not subject to the rules limiting the admissibility of extrinsic, uncharged misconduct evidence. But because res gestae is so ill-defined, such uncharged misconduct evidence too often dodges the rules and slips into cases without the requisite scrutiny.
¶3 It is time for us to bury res gestae. This court‘s adoption of the
¶4 Therefore, we join other jurisdictions that have abandoned this always-nebulous and long-superfluous doctrine. In the case at hand, our decision to abolish the res gestae doctrine in criminal cases prompts us to reverse the judgment of the court of appeals and remand for a new trial.1
I. Facts and Procedural History
¶5 This is the second time we have reviewed this case. See People v. Rojas, 2019 CO 86M, 450 P.3d 719 (”Rojas I“). Brooke Rojas was convicted of two counts of theft based on her improper receipt of food stamp benefits.
¶6 Rojas initially applied for food stamp benefits from the Larimer County Department of Human Services (the “Department“) in August 2012 when she had no income. She received a recertification letter in December, which she submitted in mid-January 2013, indicating that she still had no income. And although she had not yet received a paycheck when she submitted the recertification letter, Rojas had started a new job on January 1.
¶7 Rojas continued receiving food stamp benefits every month until July, when she inadvertently allowed them to lapse. She reapplied in August 2013. Although still working, Rojas reported that she had no income. The Department checked Rojas‘s employment status in connection with the August application and learned that she was making about $55,000 a year (to support a family of seven). The Department determined that Rojas had received $5,632 in benefits to which she was not legally entitled.
¶8 The prosecution charged Rojas with two counts of theft under
¶9 At trial, Rojas‘s defense was that she lacked the requisite culpable mental state — she didn‘t knowingly deceive the government; she just misunderstood the forms. The prosecution‘s theory was that Rojas‘s misstatements on the January recertification form were not an oversight but rather a knowing attempt to receive benefits to which she wasn‘t legally entitled.
¶10 Before trial, Rojas objected to the prosecution‘s proposed admission of the August 2013 application because it exceeded the time period of the charged offenses and didn‘t lead to the receipt of any benefits. The prosecution countered that the application was admissible as res gestae evidence — to show how the investigation began — and as evidence of specific intent. The court found it relevant as circumstantial evidence of Rojas‘s mental state.
¶11 On the morning of trial, Rojas renewed her objection to introduction of the August 2013 application, again asserting that it was irrelevant and unfairly prejudicial. She further argued the application was impermissible
¶12 The prosecution questioned Rojas about the August 2013 application during her testimony, highlighting that she knew she
¶13 A jury convicted Rojas of two counts of theft under the general theft statute for obtaining food stamp benefits to which she was not legally entitled. Rojas appealed, and a division of the court of appeals vacated the convictions. People v. Rojas, 2018 COA 20, ¶ 40, 490 P.3d 391, 398. We granted certiorari to review whether the legislature had “created an independent criminal offense for food stamp theft that abrogated the State‘s authority to prosecute under the general theft statute.” Rojas I, ¶ 9 n.1, 450 P.3d at 721 n.1. Concluding it had not, we reversed the court of appeals’ judgment and remanded for the division to consider any remaining issues on appeal. Id. at ¶ 28, 450 P.3d at 724.
¶14 On remand, the division addressed the three remaining contentions and affirmed Rojas‘s convictions, but it remanded for resentencing and correction of the mittimus to reflect statutory changes that reduced the felony level of her offenses. People v. Rojas, 2020 COA 61, ¶ 32, 490 P.3d 744, 749 (”Rojas II“). Rojas again petitioned this court for certiorari review, which we granted.3
II. Analysis
¶15 After identifying the standard of review, we describe the evolution of the res gestae doctrine in Colorado. We then consider some of the criticism of the doctrine before concluding that the modern
A. Standard of Review
¶16 We review a trial court‘s evidentiary rulings for an abuse of discretion. Venalonzo v. People, 2017 CO 9, ¶ 15, 388 P.3d 868, 873. A trial court abuses its discretion when its ruling is based on an erroneous view of the law. People v. Wadle, 97 P.3d 932, 936 (Colo. 2004).
¶17 In reviewing a trial court‘s ruling, appellate courts ordinarily adhere to precedent under the doctrine of stare decisis. See Love v. Klosky, 2018 CO 20, ¶ 14, 413 P.3d 1267, 1270. However, the doctrine is not so inflexible that we can‘t reevaluate our precedent where “we are ‘clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come from departing from precedent.’ ” McShane v. Stirling Ranch Prop. Owners Ass‘n, Inc., 2017 CO 38, ¶ 26, 393 P.3d 978, 984 (quoting People v. Blehm, 983 P.2d 779, 788 (Colo. 1999)); People v. LaRosa, 2013 CO 2, ¶¶ 30–31, 293 P.3d 567, 574–75 (departing from stare decisis after concluding there were sound reasons for doing so).
B. The Evolution of the Res Gestae Doctrine in Colorado
¶18 Res gestae has deep roots in American common law. The Supreme Court first referenced the doctrine in 1817, Leeds v. Marine Ins. Co., 15 U.S. (2 Wheat.) 380, 383, 4 L.Ed. 266 (1817), and Colorado courts have recognized it since at least the 1870s, see Doane v. Glenn, 1 Colo. 495, 499-501 (1872), rev‘d on other grounds by Doane v. Glenn, 88 U.S. (21 Wall.) 33, 22 L.Ed. 476 (1874). The Latin phrase, which means “things done,” Res Gestae, Black‘s Law Dictionary (11th ed. 2019), encompassed evidence that was necessary to understand the charged crime:
Res gestae may be broadly defined as matter incidental to a main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of it, and without a knowledge of which the main fact might not be properly understood. They are the events themselves speaking through the instinctive words and acts of participants;
the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it and serve to illustrate its character.
Denver City Tramway Co. v. Brumley, 51 Colo. 251, 116 P. 1051, 1052-53 (1911); see also Graves v. People, 18 Colo. 170, 32 P. 63, 65 (1893) (“Res gestae are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants when narrating the events. What is done or said by participants under the immediate spur of a transaction becomes thus part of the transaction, because it is then the transaction that thus speaks.” (quoting Francis Wharton, A Treatise on the Law of Evidence in Criminal Issues § 262 (9th ed. 1884))).
¶19 In these early formulations, res gestae served primarily as an exception to the general prohibition against hearsay. 2 Kenneth S. Broun et al., McCormick on Evidence § 268 (Robert P. Mosteller ed., 8th ed. 2020). Courts admitted statements made during or adjacent to the charged crime because it was assumed that the spontaneity of such statements rendered them reliable. See Archina v. People, 135 Colo. 8, 307 P.2d 1083, 1097 (1957) (“Under the well-established doctrine of res gestae, unsworn statements are admitted on the theory that they are spontaneous utterances, dominated and evoked by the transaction itself, and are not the result of premeditation, reflection or design.“); see also Zapata, ¶ 71, 428 P.3d at 532 (Hart, J., specially concurring); H. Patrick Furman & Ann England, The Expanding Use of the Res Gestae Doctrine, 38 Colo. Law. 35, 35 (2009).
¶20 In this way, res gestae statements were treated much like the later-codified hearsay exceptions for present sense impressions, excited utterances, and then-existing mental states. See
¶21 Even in its hearsay heyday, however, the vagueness of res gestae earned stiff rebukes from esteemed scholars and jurists. Professor Wigmore lamented that res gestae‘s “indefiniteness has served as a basis for rulings where it was easier for the judge to invoke this imposing catchword than to think through the real question involved.” Res Gestae, Black‘s Law Dictionary (11th ed. 2019) (quoting John H. Wigmore, A Students’ Textbook of the Law of Evidence 279 (1935)). Judge Learned Hand was equally blunt, observing that res gestae “is a phrase which has been accountable for so much confusion that it had best be denied any place whatever in legal terminology; if it means anything but an unwillingness to think at all, what it covers cannot be put in less intelligible terms.” United States v. Matot, 146 F.2d 197, 198 (2d Cir. 1944).
¶22 Despite these misgivings, res gestae gradually seeped into the realm of uncharged misconduct evidence. Like res gestae, the law limiting the use of uncharged misconduct evidence has a long history in American jurisprudence. Because such evidence “has inhering in it damning innuendo likely to beget prejudice in the minds of jurors” and “tends to inject collateral issues into a criminal case which are not unlikely to confuse and lead astray the jury,” Stull v. People, 140 Colo. 278, 344 P.2d 455, 458 (1959), superseded by rule as stated in People v. Williams, 2020 CO 78, ¶¶ 7–15, 475 P.3d 593, 595–98, its admissibility was “strictly limited” under the common law, Williams, ¶ 7, 475 P.3d at 596.
¶23 Thus, a conflict emerged. While the scope of res gestae evidence expanded, the common law governing other-acts evidence remained exclusionary. “Prior to the adoption of the
Stull, 344 P.2d at 458–59. The prosecution, as the proponent of such evidence, had to establish by “clear and convincing evidence” that the other act had occurred and that the defendant was the person who had engaged in the misconduct. See People v. Botham, 629 P.2d 589, 602 (Colo. 1981), superseded by rule as stated in Garner, 806 P.2d at 370. And we insisted that the court address three threshold issues:
(1) is there a valid purpose for which the evidence is offered? (2) is the evidence relevant to a material issue of the case? (3) does the probative value of the evidence of the prior act, considering the other evidence which is relevant to the issue, outweigh the prejudice to the defendant which would result from its admission?
People v. Honey, 198 Colo. 64, 596 P.2d 751, 754 (1979), superseded by rule as stated in People v. Rath, 44 P.3d 1033, 1039 (Colo. 2002).
¶24 Res gestae became a convenient way to bypass the more rigorous requirements of Stull and its common-law progeny. It became a catchall for admitting all sorts of misdeeds and character evidence—no matter how attenuated in time, place, or manner —without carefully considering whether it was intrinsic or extrinsic to the charged crime. See Lancaster v. People, 200 Colo. 448, 615 P.2d 720, 723 (1980) (applying pre-Rules common law and noting that although “we have alluded to the importance of the temporal proximity of the statement to the event in a number of cases, we also have noted that contemporaneity of the act and the assertion is not required” (citations omitted)).
C. The Modern Rules of Evidence
¶25 Although the modern Rules we adopted in 1980 said nothing about res gestae, they broadly favored the admission of relevant evidence. Under
¶26 Furthermore, the
¶27 In People v. Spoto, 795 P.2d 1314, 1318-19 (Colo. 1990), this court “articulated a framework for determining the relevancy of this kind of [character] evidence within the scheme of the Rules, analyzing the requirements of
¶28 And so, under the framework of the Rules, courts can admit uncharged misconduct evidence for almost any non-propensity purpose:
In contrast to the former narrowly defined exceptions to a general rule of exclusion, we have therefore made clear that
Rule 404(b) identifies a single purpose for which other-crime evidence must always be excluded and delineates a non-exclusive list of examples of other reasons for which other-crime evidence is not to be excluded if it is otherwise admissible according to the rules of relevance. ... The traditional litany of narrowly circumscribed exceptions of pre-Rules decisional law ... no longer limits the admissibility of other-crime evidence.
Williams, ¶¶ 11-12, 475 P.3d at 596-97; see also Rath, 44 P.3d at 1038-39.
D. Examples of Inconsistency
¶29 Despite these developments, the res gestae doctrine remained. Unsurprisingly, courts wrestling with whether an act is res gestae evidence or
¶30 Consider, for example, People v. Hickam, 684 P.2d 228, 230-31 (Colo. 1984), in which the prosecution charged the defendant with felony murder for a death that occurred during the defendant‘s flight from an attempted robbery. This court concluded evidence of the contemporaneous underlying robbery was admissible res gestae evidence of felony murder. Id. at 231-32. However, because one element of felony murder is proof that the defendant committed (or attempted to commit) one of the statutorily enumerated predicate crimes, evidence of the predicate was plainly relevant to proving felony murder and not unfairly prejudicial. Thus, we need not have relied on res gestae because evidence of the robbery was admissible under
¶31 Now compare Hickam - where the proposed res gestae evidence and the charged offense occurred contemporaneously - to the following two examples involving more attenuated temporal connections between such evidence and the charged offenses.
¶32 In People v. Czemerynski, 786 P.2d 1100, 1103 (Colo. 1990), the prosecution charged the defendant with harassment and criminal extortion based on threatening phone calls he allegedly made to the victim during a four-month period. The trial court, “[r]elying on
¶33 In Skufca, police officers arrested the defendant on a warrant for traffic offenses and, during a search incident to arrest, found drugs and drug paraphernalia in his car. 176 P.3d at 84. Earlier in the day, the defendant had sold drugs to an undercover DEA agent. Id. The prosecution sought to introduce testimony about the drug transaction as res gestae evidence to help prove that the defendant knowingly possessed the drugs that were later found in his car. Id. at 85. The trial
¶34 The preceding examples demonstrate how we have muddied the law by analyzing admissibility under res gestae instead of the
¶35 In People v. Greenlee, 200 P.3d 363, 365-69 (Colo. 2009), we concluded that the defendant‘s statement that he wanted to kill a woman and hide her body in a remote area, made two months before the murder at issue, was admissible under general relevancy rules (
Id. But this criterion is simply part of the
E. Farewell Res Gestae
¶36 In his dissent to the division‘s opinion here, Judge Furman rightly observed that res gestae often “obscure[s] what [it] purport[s] to describe.” Rojas II, ¶ 59, 490 P.3d at 752 (Furman, J., dissenting) (alteration in original) (quoting 1 Kenneth S. Broun et al., McCormick on Evidence § 190.9 (Robert P. Mosteller ed., 8th ed. 2020)). And he has not been alone in his criticism. See, e.g., Zapata, ¶ 76, 428 P.3d at 533 (Hart, J., specially concurring) (noting that res gestae “is a vague and nearly standardless concept that is applied too expansively“); People v. Agado, 964 P.2d 565, 569 (Colo. App. 1998) (Briggs, J., specially concurring) (“[T]he doctrine has confounded counsel and courts, often tending to create as much confusion as clarification.“).
¶37 Not only is the doctrine vague, it‘s harmful. Because of its ambiguity, res gestae - which was never more than a theory of relevance, Greenlee, 200 P.3d at 368 - is more often treated as a theory for near-universal admissibility. The doctrine invites truncated analysis. As noted by Justice Hart in her special concurrence in Zapata, res gestae all too often “short-circuit[s] the evaluation called for in
¶38 The “completing the story” rationale to admit other-acts evidence “create[s] the greatest risk of subverting the limitations that ought to apply whenever the jury is informed of a person‘s uncharged wrongdoing.” David P. Leonard, New Wigmore on Evidence: Evidence of Other Misconduct § 5.3.2 (2d ed. Supp. 2020). This application of res gestae risks being the exception that swallows
¶39 Moreover, the continued use of res gestae is unnecessary. “[E]very rule of evidence to which it has ever been applied exists as a part of some other well-established principle and can be explained in the terms of that principle.” 6 John Henry Wigmore, Evidence in Trials at Common Law § 1767 (James H. Chadbourne rev., 1976).
¶40 Colorado‘s experience is not unique. Many jurisdictions have determined that res gestae is incompatible with the modern Rules. See, e.g., People v. Jackson, 498 Mich. 246, 869 N.W.2d 253, 264 (2015) (“[T]he plain language of
¶41 We now join those jurisdictions and abolish the res gestae doctrine in Colorado. For all of the reasons provided above, we are clearly convinced that more good than harm will come from departing from our precedent regarding res gestae evidence. In doing so, we seek to do more than simply de-Latinize the analysis. We strive to move beyond the use of catchphrases and metaphors for deciding when
F. How to Decide When Rule 404(b) Applies
¶42 We recognize that abolishing the res gestae doctrine offers no magic wand. It
¶43 Furthermore,
¶44 We join those courts that generally recognize an intrinsic-extrinsic distinction, with extrinsic acts falling under
¶45 Examples from jurisdictions already operating in the post-res gestae world are instructive. In United States v. Roberson, --- F.Supp.3d ----, ----, 2022 WL 35643, at *2 (D.D.C. 2022), the defendant was charged with one count of distribution of child pornography for sending a video by email to “Email Address 2.” In a motion in limine, the prosecution sought to introduce all the defendant‘s email communications (over seventy emails spanning a fourteen-month period) with Email Address 2. Id. at *2, 4. The court observed that “[b]ecause
¶46 Using this framework, the court first summarized the communications sent before the video. Relying on the prosecution‘s summary, the court described that the first email was the defendant initiating contact with Email Address 2, the second was Email Address 2 responding and directly soliciting the criminal act, and the third email was the defendant sending the video that formed the basis of the charged offense to Email Address 2. Id. This thread of communication all occurred within minutes. Id. The court concluded that these emails “leading up to and immediately surrounding” transmission of the video were intrinsic evidence because they occurred contemporaneously with the charged offense and facilitated its commission and were not, therefore, constrained by
¶47 The court then analyzed the emails sent after the video, some sent more than a year later, concluding that “[i]t stretches credulity to call ... two messages sent fourteen months apart contemporaneous with one another.” Id. Further, because the court couldn‘t “see how an act occurring well after the charged crime could ‘assist in bringing [the crime] about,’ ” it concluded the post-video emails were not intrinsic to the charged crime. Id. at *5 (quoting United States v. Cox, No. CR-16-08202-001-PCT-ROS, 2018 WL 9785498, at *1 (D. Ariz. May 1, 2018)).
¶48 Finally, the court rejected the government‘s argument that all the emails between
¶49 The court in United States v. Shea, 159 F.3d 37 (1st Cir. 1998), applied a similar test. In Shea, police were searching for the identity of two men who had attempted to rob a bank. Id. at 38-39. During the attempted robbery, one man pointed a shiny, silver revolver at one of the clerks while the other man pointed a black revolver at the other clerk; however, because neither clerk could open the vault, the robbers left empty-handed. Id. at 38. The men entered and exited the bank through the same broken window, with one of the men cutting himself and leaving DNA evidence at the scene that was later matched to the defendant. Id. One week after the attempted robbery, the defendant was arrested for another, unrelated robbery. Id. at 38-39. During that arrest, police seized from the defendant a black revolver that matched the description of one of the guns used during the earlier, attempted robbery. Id.
Id. at 248. And roughly twelve years later, it seems as if the new label gives rise to the same varied results as the old one. See United States v. Steiner, 847 F.3d 103, 112 (3d Cir. 2017) (finding that evidence of a defendant‘s prior possession of a different firearm was intrinsic to the charged crime of being a felon in possession of a firearm because it was “direct proof” of the charged offense).B. The Decision Imposes an Undue Burden on Trial Courts
¶74 Second, the majority‘s decision places an unnecessary burden on Colorado‘s trial courts. Because the majority significantly narrows the definition of intrinsic evidence, it expands the types of evidence that are now subject to
¶75 And for what? For a “cleaner” rule? The majority says that its new rule provides “clearer guidance.” Maj. op. ¶ 2. But as I‘ve already argued, the new rule merely substitutes one set of ambiguous terms for another. Is it really worth burdening the system for such an uncertain gain?
C. The Decision Violates Stare Decisis
¶76 Finally, and perhaps most importantly, the majority‘s decision to discard res gestae violates the principle of stare decisis. As the majority acknowledges, res gestae has been a part of Colorado law for over one hundred years. Maj. op. ¶ 18. We do not lightly disregard our long-standing precedent.
¶77 ”Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). To depart from our precedent, we must have a “sound reason” for doing so. People v. Kutlak, 2016 CO 1, ¶ 18, 364 P.3d 199, 203. Here, the majority offers no sound reason other than its belief that the doctrine is confusing. But as I‘ve already explained, the majority‘s new rule is no less confusing.
¶78 In my view, the majority‘s decision is a solution in search of a problem. Res gestae, while at times misapplied, serves a valuable purpose in our evidentiary framework. Rather than discarding it, we should focus on clarifying its boundaries and ensuring its proper application. Because the majority chooses to abandon a century of precedent for a new, equally ambiguous rule, I respectfully concur in the judgment only.
CHIEF JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER, concurred in the judgment only.
¶74 Moreover, I believe the majority‘s ruling today will have unintended consequences. At oral argument, defense counsel raised an interesting argument. She posited that the doctrine of res gestae prompts hurried, whispered conversations at the bench, where trial court judges must make split-second decisions about what is and is not res gestae evidence. From my experience, I know that her assertion is accurate. But the problem that defense counsel diagnoses is not due to res gestae‘s imperfection. Rather, it is a direct result of how inherently difficult it is to determine when the charged offense ends and “other” offenses, acts, or misdeeds begin. That grey area will not suddenly become black and white after res gestae is replaced. For this reason, I am certain that, despite the majority‘s holding today, those whispered conversations and split-second evidentiary rulings at the bench will continue. The only difference is that, going forward, these conversations will be about why there was not adequate pretrial notice under
B. The Majority‘s Decision Places an Unreasonable Burden on Trial Courts
¶75 Undoubtedly, it is Colorado‘s already overworked trial courts that will bear the brunt of the majority‘s holding. Because of the dangers of the propensity inference,
¶76 The majority‘s decision to discard res gestae facilitates a shift. Now, I envision that, mid-trial, attorneys will argue that evidence of every granular detail (even if relevant and integral to the case—such as the example of the alleged robber who uses check-cashing as a ruse to scout out a bank in advance of the actual robbery, see Maj. op. ¶ 51) depicts an “other act” and therefore should have been safeguarded under
C. The Majority‘s Decision Violates the Mandate of Stare Decisis
¶77 Finally, under the principle of stare decisis, I believe the doctrine of res gestae should be kept intact. Stare decisis is a fundamental principle of the rule of law; it is the “preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Love v. Klosky, 2018 CO 20, ¶ 14, 413 P.3d 1267, 1270 (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)).
¶78 Throughout this court‘s history, we have explained that stare decisis “‘should be adhered to in the absence of sound reason for rejecting it.’” People v. Blehm, 983 P.2d 779, 788 (Colo. 1999) (quoting Smith v. Dist. Ct., 907 P.2d 611, 612 (Colo. 1995)). In other words, we have a duty to exercise “extreme reluctance in overruling settled law.”
¶79 Here, in my view, “no reason is advanced which calls for deviating from stare decisis,” see Creacy v. Indus. Comm‘n, 148 Colo. 429, 366 P.2d 384, 386 (1961); thus, we should decline to do so. As the majority acknowledges, the doctrine of res gestae is well-settled. See Maj. op. ¶ 18. Colorado courts have recognized the early forms of res gestae since at least the 1870s. See Doane v. Glenn, 1 Colo. 495, 499-501 (1872), rev‘d on other grounds by Doane v. Glenn, 88 U.S. (21 Wall.) 33, 22 L.Ed. 476 (1874). Even in its more modern form, res gestae has been a part of our jurisprudence for over ninety years. See Abshier v. People, 87 Colo. 507, 289 P. 1081, 1088 (1930) (holding that evidence of the defendant‘s other crimes was admissible because the offenses were “indivisibly connected with, incidental to, and in furtherance of” the charged crime). And a quick survey of Colorado case law reveals that courts have consistently relied on the res gestae framework in tandem with the Rules of Evidence for the past forty-odd years. See People v. Czemerynski, 786 P.2d 1100, 1109 (Colo. 1990); Quintana, 882 P.2d at 1373–74; Rollins, 892 P.2d at 872–73; People v. Skufca, 176 P.3d 83, 86–87 (Colo. 2008); People v. Merklin, 80 P.3d 921, 924–25 (Colo. App. 2003); People v. Thomeczek, 284 P.3d 110, 114–15 (Colo. App. 2011); People v. Cisneros, 2014 COA 49, ¶¶ 105-06, 108, 356 P.3d 877, 898; People v. Knapp, 2020 COA 107, ¶¶ 32–34, 44, 487 P.3d 1243, 1252–53.
¶80 The majority justifies discarding this foundational doctrine by pointing to its inconsistent application and misuse in Colorado‘s courts, see Maj. op. ¶ 41, which I agree has occurred. But courts have misapplied
IV. Conclusion
¶81 In sum, while I agree with the majority that the misapplication of res gestae should be addressed, I believe that replacing the doctrine creates new problems while failing to address existing ones. I strongly disagree with the majority‘s decision because it will unreasonably burden the trial courts, disturb over a century of precedent, and destabilize Colorado‘s evidence jurisprudence —all for the purpose of mere rebranding.
¶82 Therefore, instead of casting off the doctrine, I would simply clarify it. I would hold, as we have held for nearly a century, that evidence integral to the charged offense is relevant evidence admissible under the framework of
¶83 Because I agree with the majority that reversal is required but believe that abandoning the doctrine of res gestae is not, I respectfully concur in the judgment only.
Notes
We granted certiorari to review the following issues:
The majority acknowledges that other jurisdictions have adopted the “intrinsic evidence” label to replace res gestae. Maj. op. ¶ 44.1. Whether evidence that petitioner committed a similar offense, after the charged offense, is admissible without a limiting instruction, under the res gestae doctrine, to prove that she committed the charged offense.
2. Whether this court should abolish the res gestae doctrine.
We granted certiorari to review the following issues:
I say that the majority‘s opinion “rebrands” the doctrine because, despite its broad proclamation that the mere notion of res gestae obfuscates1. Whether evidence that petitioner committed a similar offense, after the charged offense, is admissible without a limiting instruction, under the res gestae doctrine, to prove that she committed the charged offense.
2. Whether this court should abolish the res gestae doctrine.