Peo v. Morales-Ramirez

19CA1448 Peo v Morales-Ramirez 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1448

Arapahoe County District Court No. 16CR3238

Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Alberto Morales-Ramirez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE BROWN

Berger and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 20, 2022

Philip J. Weiser, Attorney General, Mark T. Bailey, Senior Assistant Attorney

General II, Paul E. Koehler, First Assistant Attorney General, Denver, Colorado,

for Plaintiff-Appellee

Driscoll Law Office, Robert J. Driscoll, Denver, Colorado, for Defendant-

Appellant

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¶ 1 Defendant, Alberto Morales-Ramirez, appeals his judgment of

conviction on four counts of distribution of a controlled substance.

We affirm.

I. Background

¶ 2 In 2016, a grand jury indicted Morales-Ramirez and twelve

other defendants for drug crimes. On March 20, 2019, Morales-

Ramirez went to trial on ten counts of distribution of a controlled

substance, one count of conspiracy, and two counts for violations of

the Colorado Organized Crime Control Act (COCCA).

¶ 3 During opening statements, the prosecutor told the jury he

expected to prove five of the drug transactions through a phone

recording, testimony from an undercover Drug Enforcement

Administration (DEA) agent, and testimony from an informant. The

prosecutor then told the jury that he expected to prove the other

five drug transactions through wiretap phone recordings and

testimony from two of Morales-Ramirez’s codefendants. The

prosecutor explained that the evidence collectively would show that

Morales-Ramirez conspired to engage in a drug distribution

enterprise.

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¶ 4 The prosecution ultimately was unable to procure Morales-

Ramirez’s codefendants to testify, so the parties agreed that the

prosecution would dismiss the five counts of distribution of a

controlled substance that the prosecution had planned to prove

through the testimony of those witnesses. The prosecution also

dismissed the conspiracy and COCCA charges.

¶ 5 Both parties and the court worked together to craft a curative

instruction to explain to the jury the prosecutor’s opening

statement as it related to the dismissed charges:

During opening statements, there were

references to other incidents, allegations, and

charges, other than the five current charges.

For reasons that are unrelated to you or

your service as a juror in this case, the Court

has dismissed several charges, and there are

now only five charges in this case. Opening

statements are not evidence. You shall not

consider those comments from opening

statements or references to other charges for

any purpose, in any aspect of your service,

including deliberations.

¶ 6 Neither party mentioned the dismissed charges in closing

argument. Both parties focused only on the remaining five drug

transactions, which were based on the phone recording and

testimony from the undercover DEA agent and the informant.

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¶ 7 After a three-day trial, the jury convicted Morales-Ramirez of

four of the five counts of distribution of a controlled substance.

II. Analysis

¶ 8 Morales-Ramirez contends that the district court should have

declared a mistrial based on the prosecutor’s reference in opening

statement to charges that were later dismissed because the

prosecution did not show due diligence in procuring the two

witnesses whose testimony would have supported the dismissed

charges. We disagree.

A. Morales-Ramirez Waived the Error

¶ 9 As an initial matter, we note that Morales-Ramirez’s counsel

expressly agreed to the course of action the district court took to

mitigate the impact of the prosecutor’s opening statement by

creating a curative instruction that he now claims was erroneous.

In doing so, he waived the challenge he raises on appeal. See

Stackhouse v. People, 2015 CO 48, ¶ 17 (holding that waiver applies

not only when counsel expressly states an intent to give up a right,

but also where counsel does not object to the trial court’s action

despite a clear opportunity to do so); cf. People v. Rediger, 2018 CO

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32, ¶¶ 39-47 (concluding that waiver did not occur where the

defendant’s counsel acquiesced to the jury instructions as a whole).

B. The District Court Did Not Plainly Err by Not Sua Sponte

Granting a Mistrial

¶ 10 Even assuming Morales-Ramirez did not waive the alleged

error, however, his claim fails under the applicable standard of

review.

¶ 11 Because Morales-Ramirez’s counsel did not object to the

court’s curative instruction or move for a mistrial, we review only

for plain error. See Garcia v. People, 2019 CO 64, ¶ 3. “An error is

plain if it is obvious and substantial and so undermines the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction.” Rediger, ¶ 48. For an

error to be obvious it must contravene a statute or rule, a well-

settled legal principle, or established Colorado case law. Campbell

v. People, 2020 CO 49, ¶ 25.

¶ 12 “A prosecutor’s opening statement is limited to the evidence

that will be adduced at trial.” People v. Melanson, 937 P.2d 826,

836 (Colo. App. 1996). But remarks made in opening statement

that are later proved unsupported by the evidence will constitute

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reversible error only if “there has been an affirmative showing of

bad faith and manifest prejudice.” See id.

¶ 13 Morales-Ramirez acknowledges this standard — which

requires that he demonstrate both bad faith by the prosecution and

manifest prejudice resulting from the comments made in opening

statement — but asks us to reexamine these requirements. He

argues that because the prosecution did not demonstrate “due

diligence” in its efforts to procure the two witnesses that would have

offered evidence supporting the dismissed charges “the

requirement[s] of bad faith and manifest prejudice should not

apply.” Essentially, he argues that the district court plainly erred

by not declaring a mistrial based on a standard that does not exist

now and did not exist at the time of trial.

¶ 14 Because an error is only obvious when it contravenes a statute

or rule, a well-settled legal principle, or established Colorado case

law, such error is generally not obvious when nothing in Colorado

statutes or prior case law would have alerted the trial court to the

error. Scott v. People, 2017 CO 16, ¶ 17. In other words, a trial

court cannot commit plain error by adhering to published Colorado

appellate decisions that were in place at the time of trial; instead,

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the trial court is bound to follow the decisions of the appellate

courts and cannot generally be faulted for not departing from that

authority sua sponte. Id.

¶ 15 Because the standard Morales-Ramirez asks us to adopt did

not exist at the time of trial, we conclude that any error by the

district court in failing to sua sponte declare a mistrial based on

that standard was not obvious. And if the error was not obvious, it

was not plain. See Rediger, ¶ 48.

¶ 16 Moreover, Morales-Ramirez has failed to establish obvious

error by the district court under the standard articulated in

established Colorado case law. See Melanson, 937 P.2d at 836. He

made no affirmative showing of bad faith to the district court.

Although the prosecutor indicated during his opening statement

that two of Morales-Ramirez’s codefendants would testify about five

of the drug transactions, the record reflects that the prosecutor

learned during trial that he would be unable to procure those

witnesses. Because the prosecutor did not learn of the witnesses’

unavailability until after opening statements, we see no evidence of

bad faith. See id. (discerning no evidence of bad faith when the

prosecutor indicated during opening statements that witnesses

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would testify, but during trial discovered evidence that impeached

their credibility, so chose to cease questioning one witness and not

to call the other).

¶ 17 Morales-Ramirez also failed to show the district court that he

was manifestly prejudiced by the unsupported remarks made in

opening statements. Once the parties and the court learned that

the witnesses were unavailable, they worked together to craft a

curative instruction. The court instructed the jury after closing

arguments that opening statements are not evidence and to

disregard any comments the prosecutor made in opening statement

about the dismissed charges, and we presume that the jury followed

those instructions. See People v. Tillery, 231 P.3d 36, 43 (Colo.

App. 2009), aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo.

2011); see also People v. Ellis, 30 P.3d 774, 778 (Colo. App. 2001)

(holding that absent evidence to the contrary, we presume that the

jury followed the curative instruction and that the instruction cured

any prejudice to defendant). Morales-Ramirez does not articulate

any prejudice he suffered that was not cured by these instructions.

¶ 18 Under these circumstances, we perceive no plain error.

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III. Conclusion

¶ 19 We affirm the judgment of conviction.

JUDGE BERGER and JUDGE JOHNSON concur.