Opinion
22CA0515
05-23-2024
The People of the State of Colorado, Plaintiff-Appellee, v. Charles Devlin Taylor, Defendant-Appellant.
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Joseph T. Goodner, Alternate Defense Counsel, Englewood, Colorado, for Defendant-Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Douglas County District Court No. 20CR1030 Honorable Patricia D. Herron, Judg
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Joseph T. Goodner, Alternate Defense Counsel, Englewood, Colorado, for Defendant-Appellant
OPINION
GROVE JUDGE
¶ 1 Defendant, Charles Devlin Taylor, appeals his convictions for second degree burglary of a dwelling, possession of burglary tools, attempt to commit theft of items valued at more than $2,000 but less than $5,000, and criminal mischief. We reverse and remand the case for further proceedings.
I. Background
¶ 2 J.S., a homeowner in Castle Rock, arrived home from work one evening, and, once inside, discovered a man wearing a yellow reflective vest walking from an office bathroom toward the master bedroom. Startled, J.S. shouted at the intruder and retreated to the garage. The intruder fled, leaving behind various burglary tools and a black ski mask. J.S. called the police, who canvassed the area and found a yellow reflective vest two houses away. The intruder escaped, but contemporaneous video footage from a nearby homeowner's security system showed a person run to, and then drive away in, a silver sedan. J.S. discovered several of his firearms strewn about the master bedroom but none were missing.
¶ 3 Two weeks later, Taylor attempted to break into a home in Greenwood Village. Video footage showed Taylor wearing a yellow reflective vest and driving around in a silver sedan. Law enforcement found the silver sedan abandoned near the home and apprehended Taylor shortly thereafter.
¶ 4 The People charged Taylor with one count each of second degree burglary, possession of burglary tools, attempted theft, criminal mischief, and violation of bail bond conditions, along with four counts of possession of a weapon by a previous offender (POWPO) and eight habitual criminal counts. (The POWPO and bail bond counts were severed from the counts relating directly to the burglary, and after the jury trial was over, Taylor pleaded guilty to the POWPO counts in exchange for a stipulated sentence and dismissal of the bail bond count. Taylor does not challenge his POWPO convictions in this appeal.)
¶ 5 Taylor represented himself at trial but had appointed counsel throughout much of the pretrial period. Several months before trial, while still represented by counsel, Taylor endorsed an alternate suspect defense pursuant to which he intended to argue that the Castle Rock burglary had been committed by his former crime partner, who was also Taylor's codefendant in several other burglary cases. The trial court held a hearing on Taylor's alternate suspect defense but rejected it, finding that he had failed to "establish a nonspeculative connection between the alternate suspect and the crime charged."
¶ 6 At trial, Taylor attempted to testify as to an alibi, stating that he "wasn't in Denver" and "wasn't in Aurora" when the burglary occurred. Instead, he said, he "was in Blackhawk, Colorado, on the day of the event, selling weed." The prosecutor objected to this testimony, arguing that the court should strike it because Taylor had "not endorsed alibi as a defense." The court sustained the objection, struck the testimony, and permitted Taylor to testify only that "[o]n the day of the burglary I was not in Douglas County. I can't say where I was, but I was not there."
¶ 7 The jury convicted Taylor of burglary of a dwelling, attempted theft, criminal mischief, and possession of burglary tools. At sentencing, the trial court found that the prosecution had proved the habitual offender counts and sentenced Taylor to a controlling sentence of forty-eight years in the custody of the Department of Corrections on the burglary of a dwelling count, to run concurrently with the sentences for all of his other convictions.
¶ 8 Taylor raises ten contentions of error on appeal. We address only one - the trial court's exclusion of Taylor's alibi testimony - and do not consider the remaining issues because it is uncertain whether and how they might arise in the event of a retrial.
II. Alibi Testimony
¶ 9 Taylor contends that the trial court deprived him of his right to testify in his own defense and of his right to present a complete defense by erroneously precluding him from testifying as to his own alibi. We agree.
A. Additional Background
¶ 10 As noted above, Taylor attempted to testify that he could not have been the burglar in Castle Rock because he was selling marijuana in Blackhawk on the day that the burglary occurred. In response to the prosecutor's objection based on a lack of previous disclosure of an alibi defense, Taylor (who, again, represented himself at trial) responded, "It's called a general defense. I wasn't there. You're saying I can't say somebody else was there, cool. Now I can't even say I wasn't there?" The trial court issued the following ruling:
The objection is sustained. That is alibi, and he has not endorsed alibi. He can certainly deny that he was there. He can certainly talk about how he knows that he wasn't there. And to some extent he can say I know I wasn't
there because I was in another location that I can identify. But alibi, he has not endorsed. So we're stuck with that.
The court then struck the reference to Blackhawk from the record and ordered the jurors to disregard it.
¶ 11 Despite the court's instruction to disregard Taylor's attempted alibi testimony, the jury asked the following questions about his whereabouts on the day of the burglary:
• "You said you were in Blackhawk on the [date of the alleged crimes], what time did you arrive and leave Blackhawk?"
• "Please state/explain where you were on [the day of the burglary] &what you were doing with a timeline."
• "Is there anyone or any video (such as at a casino or elsewhere) that could verify your whereabouts that day?" • "Where was the defendant at 1 pm on [the date of the burglary]?"
¶ 12 Even though, in limiting Taylor's testimony about a potential alibi defense, the court had ruled that Taylor would be able to say that he "kn[e]w [he] wasn't there because [he] was in another location that [he] can identify," the court refused to permit Taylor to answer any of these jury questions.
¶ 13 After he was convicted, Taylor, once again represented by counsel, moved for a new trial based on the court's exclusion of his alibi testimony. Relying on the holding of People v. Hampton, 696 P.2d 765 (Colo. 1985) (Hampton I), Taylor argued that the alibi disclosure requirements outlined in Crim. P. 16(II)(d) do not apply when the accused is the alibi witness. The prosecutor disagreed, arguing that in People v. Hampton, 758 P.2d 1344, 1348-51 (Colo. 1988) (Hampton II), the supreme court confirmed that the disclosure requirements of Crim. P. 16 can be enforced in a manner that limits a defendant's alibi testimony. The trial court agreed with the prosecution and confirmed its prior ruling.
On appeal, the Attorney General does not defend the prosecutor's argument that Hampton II altered Hampton I's holding that "the disclosure requirement [of what is now Crim. P. 16] does not apply to the defendant as an alibi witness, and . . . the exclusion sanction is not applicable to the defendant's alibi testimony." 696 P.2d at 776. To the extent that the Attorney General suggests that the supreme court should reconsider Hampton I, that is not an issue for us to decide.
B. Standard of Review and Principles of Law
¶ 14 The applicability of the disclosure requirements of Crim. P. 16(II)(d) to Taylor's attempt to testify about his own whereabouts on the day of the burglary presents a question of law that we review de novo. People v. Steen, 2014 CO 9, ¶ 9 ("Interpretation of a statute or rule is a question of law, which we review de novo.").
¶ 15 Taylor preserved this issue by attempting to testify as to his whereabouts on the day of the burglary and objecting when the trial court ruled that he could not do so.
¶ 16 The parties disagree on the standard of reversal. The People contend that harmless error review applies; Taylor argues that, because the trial court's ruling implicated his right to testify and his right to present a complete defense, we should apply the constitutional harmless error standard. We need not resolve this dispute because we conclude that reversal would be required under either standard.
C. Applicable Law
¶ 17 Crim. P. 16(II)(d) and section 16-7-102, C.R.S. 2023, both require that a defendant provide the prosecution with any information regarding alibi witnesses "as soon as practicable," "but not later than thirty-five days before trial." The rule and statute both provide further that if the defendant "fails to make the specification required by this section, the court shall exclude evidence" offered in support of the alibi defense absent a showing of good cause.
¶ 18 In Hampton I, the supreme court rejected a facial constitutional challenge to the precursor to Crim. P. 16(II)(d), holding that the mandatory disclosure of alibi witnesses was constitutional when applied to third-party witnesses. 696 P.2d at 775. However, Hampton I also held "that the disclosure requirement does not apply to the defendant as an alibi witness, and that the exclusion sanction is not applicable to the defendant's alibi testimony." Id. at 776. It reasoned that compulsory disclosure of third-party alibi witnesses and related evidence is intended to prevent unfair surprise, and that the rule's purpose is furthered by requiring early disclosure of evidence that the prosecution would not otherwise have a reason to anticipate. Id. at 775-76. But, for two reasons, the risk of unfair surprise does not exist when the evidence of an alibi is the testimony of the defendant himself. First, because "[t]he prospect that a defendant will testify in his own defense is always present in a criminal case," the prosecution must prepare for that possibility. Id. at 775. Second, "the state must prove a defendant's presence during the commission of an alleged crime, proof which invariably requires pretrial investigation and preparation." Id. at 776 (citation omitted). Thus, not only should the prosecution be prepared for a defendant to testify, but it should also necessarily plan to meet uncorroborated alibi testimony with contradictory evidence of its own. Id.
D. Application
¶ 19 Despite Hampton I's clear statement that the disclosure requirements of Crim. P. 16(II)(d) do not apply to a defendant's alibi testimony, the trial court prevented Taylor from testifying as to his alibi at trial because he had not previously disclosed his plan to do so. The People concede that this was error, and we agree.
¶ 20 That leaves us with only the question whether the trial court's erroneous ruling was harmless. Applying the more lenient standard of nonconstitutional harmless error, reversal is warranted if an error substantially influenced the verdict or affected the fairness of the trial proceedings. People v. Martinez, 2020 COA 141, ¶ 28.
¶ 21 Although the evidence of Taylor's guilt adduced at trial was substantial, we nevertheless conclude that the erroneous exclusion of his alibi testimony affected the fairness of the trial proceedings. True, DNA testing linked Taylor to the mask that was recovered from J.S.'s house, and there was other circumstantial evidence implicating him in the burglary, including the admission of CRE 404(b) evidence that Taylor had worn a yellow reflective vest similar to the one that the burglar wore here during a different attempted burglary. But Taylor's theory of defense was identity, and the mask had two DNA contributors. Moreover, despite the fact that he saw the burglar's face twice at the time of the burglary, J.S. never identified Taylor as the perpetrator, even when asked if he could do so at the trial.
We acknowledge that Taylor challenges the trial court's admission of certain evidence under CRE 404(b). We do not reach that issue because we conclude that reversal is required for other reasons and because the prosecution's case was not overwhelming regardless of the admission of the other acts evidence. Moreover, in the event of a retrial, we cannot be certain that the parties' positions and arguments will be the same, and we do not issue advisory opinions. See Bd. of Cnty. Comm'rs v. Cnty. Rd. Users Ass'n, 11 P.3d 432, 438 (Colo. 2000) (stating that a court may not "render an advisory opinion on a controversy that is not yet ripe, or decide a case on speculative, hypothetical, or [a] contingent set of facts") (citation omitted); cf. People v. Stewart, 2017 COA 99, ¶ 64 ("[O]ur common practice is to address contentions that pertain to issues likely to arise on remand.").
¶ 22 For his part, Taylor was allowed to testify that he was not "in Douglas County" on the day of the burglary, but the court barred him from telling the jury where he was or from providing any additional details. Despite the trial court's refusal to allow Taylor to testify that he had been selling marijuana in Blackhawk at the time and its instruction to the jurors that they must disregard the statements that Taylor had already made on that point, the jurors showed a keen interest in Taylor's potential alibi by asking no fewer than four questions about it, all of which the court disallowed. The jurors' focus on Taylor's attempt to testify as to his alibi demonstrates that the court's limitation on his alibi testimony may well have influenced the jury's verdict. See Krutsinger v. People, 219 P.3d 1054, 1058 (Colo. 2009).
¶ 23 Accordingly, the erroneous exclusion of Taylor's alibi testimony was not harmless and reversal is required.
III. Disposition
¶ 24 We reverse Taylor's convictions for second degree burglary of a dwelling, possession of burglary tools, attempt to commit theft of items valued at more than $2,000 but less than $5,000, and criminal mischief, and remand the case for further proceedings consistent with this opinion.
JUDGE FOX AND JUDGE SULLIVAN CONCUR.