Peo v. Delgado-Cruz

22CA0977 Peo v Delgado-Cruz 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0977
El Paso County District Court No. 21CR3330
Honorable David Shakes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Roberto Carlo Delgado-Cruz,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Roberto Carlo Delgado-Cruz, fatally shot a man

outside a 7-Eleven store in Colorado Springs. The jury rejected his

self-defense claim and convicted him of first degree murder.

¶2 On appeal, he contends that the court made two erroneous

evidentiary rulings that undermined his theory of self-defense,

exhibited bias against the defense, and improperly granted the

prosecution’s motion for costs without a hearing. We discern no

reversible error and therefore affirm the judgment of conviction.

I. Background

¶3 The events that led to the shooting occurred over two nights in

June 2021. The interactions between Delgado-Cruz and the victim

on those nights were captured on surveillance video (without audio).

¶4 The night before the shooting, Delgado-Cruz went to a

7-Eleven store (Chelton 7-Eleven) and left without paying for several

items. The victim, an employee of the Chelton 7-Eleven, chased

after Delgado-Cruz, but Delgado-Cruz sped away in a van.

¶5 The next night, Delgado-Cruz and two other men returned to

the Chelton 7-Eleven. The three men entered the store, but when

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they noticed that the clerk, who recognized Delgado-Cruz from the

previous night, was calling the police, they left.

¶6 About ten minutes later, Delgado-Cruz pulled up at another

7-Eleven store (Circle 7-Eleven). He entered the store alone and

went to the counter to buy cigarettes. Within a few seconds, the

victim walked into the store and approached Delgado-Cruz in a

confrontational manner. According to the Circle 7-Eleven clerk, the

two men argued but both remained relatively calm, and, as the

video confirms, the argument did not escalate to a physical

altercation. Once the purchase was complete, the men left the

store. As soon as he was outside, Delgado-Cruz pulled out a gun,

aimed it at the victim, and a few seconds later, shot him ten times.

¶7 Police arrested Delgado-Cruz the next morning. After initially

denying any involvement in the shooting, Delgado-Cruz told police

that he fired at the victim in self-defense. He claimed that just

moments before the shooting, the victim told him “I’m going to

shoot you like I shot your friend.”

¶8 Delgado-Cruz did, in fact, have a friend who had recently been

seriously wounded by an unknown shooter during a drug deal.

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After the shooting at the Circle 7-Eleven, police discovered that the

victim had been carrying a large amount of cash and had drugs and

drug paraphernalia in his car.

¶9 Delgado-Cruz sought to introduce evidence that the victim was

a drug dealer and had an ongoing rivalry with the friend. The court

allowed Delgado-Cruz to establish that the friend had been shot,

but it excluded evidence of the victim’s alleged drug dealing as

irrelevant and unduly prejudicial. Still, the victim’s prior felony

convictions for possession with intent to distribute a controlled

substance and menacing with a deadly weapon were admitted for a

limited purpose under CRE 806.

¶ 10 Delgado-Cruz did not testify at trial. Relying on his

statements to police, he argued through counsel that after the

victim threatened to shoot him and appeared to take a step forward

even after the gun was drawn, he killed the victim in self-defense.

¶ 11 The jury rejected the self-defense claim and found

Delgado-Cruz guilty of first degree murder.

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II. Challenges to Evidentiary Rulings

¶ 12 Delgado-Cruz contends that the court erred by excluding

evidence that the victim was a drug dealer and by admitting a

detective’s testimony about acts depicted in the surveillance video.

A. Standard of Review and Preservation

¶ 13 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Miller, 2024 COA 66, ¶ 40. A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair. Id.

¶ 14 If the evidentiary claim is preserved, we assess whether an

error requires reversal under a harmless error standard. See People

v. Curren, 2014 COA 59M, ¶ 49. Under this standard, we reverse

only if the error substantially influenced the verdict or affected the

fairness of the trial proceedings. Hagos v. People, 2012 CO 63,

¶ 12.

¶ 15 The parties agree that both claims of error are preserved. We

will follow suit and assume preservation, though we are skeptical

that Delgado-Cruz raised in the trial court the specific argument

concerning the drug dealer evidence that he presents on appeal.

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B. Exclusion of Drug Dealing Evidence

¶ 16 As noted, Delgado-Cruz told police that the victim had

threatened to shoot him, just as he had shot Delgado-Cruz’s friend.

The Circle 7-Eleven clerk, however, testified that he never heard the

victim threaten Delgado-Cruz.

¶ 17 On appeal, Delgado-Cruz contends that evidence the victim

was a drug dealer was relevant to “corroborate” his statement that

the victim had threatened to do to him what he had done to the

friend. As we understand his argument, Delgado-Cruz says that

evidence of the victim’s drug dealing would establish that the victim

likely knew the friend had been shot which, in turn, would make it

more likely that the victim had uttered the alleged threat. We are

not persuaded.

¶ 18 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. Even if relevant, “evidence may be

excluded if its probative value is substantially outweighed by the

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danger of unfair prejudice, confusion of the issues, or misleading

the jury.” CRE 403.

¶ 19 Delgado-Cruz’s argument falters at the first step. He says that

evidence that the victim was a drug dealer, particularly that he was

the friend’s “competitor,” made it more probable that the victim

knew the friend had been shot. But the only evidentiary support for

this proposition is Delgado-Cruz’s statement to police that “on the

streets, everything is known.” That statement does not provide a

sufficient link to render evidence of the victim’s alleged drug dealing

relevant.

¶ 20 Regardless, even if the victim’s drug dealing made it more

likely that he knew about the friend’s shooting incident, the victim’s

knowledge of the shooting incident did not make it any more likely

that Delgado-Cruz was telling the truth when he said the victim

threatened him. True, if the victim did not know about the friend

having been shot, it is less likely that he made the specific threat

alleged — that he would shoot Delgado-Cruz “like [he] shot [the]

friend.” But the inverse is not true. The mere fact that the victim

might have known about the shooting does not make it any more

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likely that he said those words to Delgado-Cruz. That is, the

victim’s possible knowledge of the shooting does not “corroborate”

Delgado-Cruz’s statement to police or otherwise bolster his

credibility. See People v. Knight, 167 P.3d 147, 152–53 (Colo. App.

2006) (evidence is properly excluded when its relevance relies on an

inference that is speculative and has no support in the record).

¶ 21 Moreover, even if the evidence had some minimal probative

value, we cannot say that the trial court abused its discretion by

determining that the evidence was unduly prejudicial under CRE

403. As the pretrial proceedings demonstrate, admission of the

evidence risked diverting the jury’s attention to collateral issues and

suggesting a decision on an improper basis. See, e.g., People v.

Clark, 2015 COA 44, ¶¶ 18, 47 (a trial court should exclude

evidence that has little bearing on credibility, places undue

emphasis on collateral matters, has the potential to confuse the

jury, or has an undue tendency to suggest a decision on an

improper basis).

¶ 22 We also disagree that the evidence of drug dealing was

relevant to show that the victim had a motive to threaten to kill

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Delgado-Cruz based on his mere association with the friend. That

theory of relevance depends on an inference that drug dealers are

indiscriminately violent and, therefore, because the victim was a

drug dealer, he probably wanted to kill Delgado-Cruz for an

insignificant reason. As another division has concluded, that

required inferential leap “is a leap too far.” People v. Toro-Ospina,

2023 COA 45, ¶ 53 (affirming, in a self-defense case, the trial

court’s exclusion of evidence that the victim was a drug dealer).

¶ 23 Because the drug dealing evidence was not relevant for these

proffered purposes, we conclude that the trial court did not err by

excluding it.

C. Admission of Opinion Testimony Regarding the Video

¶ 24 A surveillance video admitted into evidence showed

Delgado-Cruz and two passengers drive up to the Chelton 7-Eleven

shortly before the shooting at the Circle 7-Eleven. The video

recorded the occupants’ actions while they were parked in the van

for about a minute before Delgado-Cruz got out of the driver’s seat

and went inside the store.

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¶ 25 Over defense counsel’s objection, the court allowed a detective

who had reviewed the surveillance video and digital photographs to

testify about what he saw on the video. The detective said that he

“observed [Delgado-Cruz] handl[e] an object in his right hand,” then

“lean[] his body back a little bit” and “tuck[] [an] object down into

his waistband area.” According to the detective, “the object in

[Delgado-Cruz’s] right hand appeared consistent with how a firearm

would appear, or a handgun.”

¶ 26 Delgado-Cruz contends that the detective’s identification of the

object as a gun was inadmissible lay opinion testimony.

¶ 27 Under CRE 701, a lay witness may give an opinion if it is,

among other things, based on the witness’s perception and helpful

to the determination of a fact in issue. “Lay opinion testimony is

permitted under Rule 701 because ‘it has the effect of describing

something that the jurors could not otherwise experience for

themselves by drawing upon the witness’s sensory and experiential

observations that were made as a firsthand witness to a particular

event.’” People v. McFee, 2016 COA 97, ¶ 76 (citations omitted).

But a witness may not form conclusions for jurors that they are

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competent to reach on their own. Id. Ordinarily, then, if a witness

is in precisely the same position as the jury to interpret a video

recording, his opinion as to what is shown on the recording is

inadmissible under Rule 701. See People v. Vergari, 2022 COA 95,

¶ 19; cf. Robinson v. People, 927 P.2d 381, 384 (Colo. 1996) (holding

that a witness can testify regarding the identity of a person depicted

in a photograph or video if there is some basis for concluding that

the witness is more likely than the jury to correctly identify the

defendant).

¶ 28 Delgado-Cruz argues that the detective was in no better

position than the jury to identify the object in his hand. Even

assuming the court erred by admitting the detective’s opinion

testimony, we conclude that any error is harmless.

¶ 29 Delgado-Cruz does not appear to dispute that the video shows

him lean back, pull up his shirt, and put an object in his

waistband. (Even if he did, we think the jury could reasonably have

perceived that from the video.) Instead, he takes issue with the

detective’s opinion that the object was “consistent” with a gun

because, he says, “[i]t is not at all clear that he has a gun.” But if

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the object is not a gun, the jury would have had to find that just

before Delgado-Cruz went into the store where he had had a run-in

with the victim the night before, he paused to put something else

down the front of his pants. That is possible, to be sure, but no one

remotely suggested as much at trial. During cross-examination,

defense counsel did not challenge the detective’s interpretation of

the video or offer an alternative theory. See People v. Vasquez, 155

P.3d 588, 595 (Colo. App. 2006) (holding that admission of a police

officer’s testimony in which he identified a man in a photograph as

the defendant was harmless where the defendant had the

opportunity to cross-examine the officer on his testimony).

¶ 30 In any event, the jury watched the surveillance video and

could determine for itself whether the object Delgado-Cruz appeared

to tuck into his waistband was a gun. And because the detective

qualified his opinion, saying that the object was “suspected” to be a

gun, he signaled to the jury that other conclusions could be

reasonable. See McFee, ¶¶ 78–79; see also People v. Rodriguez,

2021 COA 38M, ¶ 12 (no reversible error where an officer testified

about what he heard on a recording, but the jury had the same

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opportunity to hear the recording and “could decide for themselves

whether the officer’s interpretation was accurate”).

III. Denial of Motions to Disqualify and for a Mistrial

¶ 31 Before trial, the court ruled that “there is not to be any

reference to . . . items or evidence related to [the victim’s] supposed

drug dealing” without an “express prior order from [the court]

permitting it.”

¶ 32 On the first day of testimony, during cross-examination of a

crime scene investigator, defense counsel attempted to introduce

evidence of items collected from the victim, including an earring, a

gold tooth, and cash from his pockets. The court sustained the

prosecutor’s objection that the evidence was irrelevant and “a back

door attempt” to “portray [the victim] as a drug dealer” in

contravention of the court’s prior ruling.

¶ 33 The next day, during cross-examination of the coroner,

defense counsel asked if the victim “had over a thousand dollars in

his pocket.” The court ordered counsel to “[g]et up here.” At the

bench, the court asked, “So I kept that information out yesterday.

Why would you think it would be admissible today?” Unpersuaded

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by counsel’s explanation that she was “just going through standard

autopsy procedures,” the court instructed the jury to disregard

counsel’s question.

¶ 34 That evening, defense counsel filed a motion to disqualify the

trial judge and for a mistrial. The motion alleged that the judge’s

angry tone in ordering counsel to the bench manifested “hostility”

and “ill will” toward the defense, demonstrating the judge’s bias.

Counsel asserted that a mistrial was necessary because the

“impression [the judge’s biased behavior] left on the jury [could] not

be erased.”

¶ 35 The court denied the motion. It explained that it had used a

“stern” tone with counsel based on what it perceived as an

“intentional attempt to introduce irrelevant information to the jury.”

¶ 36 Over the next two days, defense counsel filed two “renewed”

motions for disqualification and a mistrial. The motions did not

present any new evidence of bias, though; they were rebuttals to the

court’s irrelevancy finding and its suggestion that counsel had

intentionally violated its ruling. The court denied those motions,

too.

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¶ 37 On appeal, Delgado-Cruz contends that the court’s “angry and

aggressive ‘get up here’ order” showed both actual bias and an

appearance of bias, requiring the judge’s disqualification and a

mistrial.

A. Legal Principles and Standards of Review

¶ 38 A judge is subject to disqualification based on both actual bias

and an appearance of bias or impropriety. See Sanders v. People,

2024 CO 33, ¶ 48.

¶ 39 Whether a judge harbors actual bias involves a subjective

inquiry — i.e., whether the judge has a personal bias or prejudice

that in all probability will prevent him from dealing fairly with a

party. See People in Interest of A.G., 262 P.3d 646, 650-–51 (Colo.

2011). A defendant asserting actual bias on the part of the trial

judge must establish that the judge had a “substantial bent of mind

against him.” People v. Jennings, 2021 COA 112, ¶ 28 (citation

omitted). To make that showing, it is not enough to point to

“judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel.” People in Interest of

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A.P., 2022 CO 24, ¶ 31 (quoting Liteky v. United States, 510 U.S.

540, 555 (1994)).

¶ 40 The appearance of bias or impropriety, on the other hand,

focuses on whether a “reasonable observer might have doubts about

the judge’s impartiality.” A.G., 262 P.3d at 650. The purpose of

disqualification based on an appearance of bias is to protect public

confidence in the judiciary. See Jennings, ¶ 19.

¶ 41 Whether a trial judge should have recused is a question of law

that we review de novo. Sanders, ¶ 25. But while both an

appearance of bias and actual bias are grounds for recusal, reversal

of a conviction is warranted only when the judge was actually

biased. See People v. Garcia, 2024 CO 41M, ¶ 21. In that

circumstance, reversal is automatic. Id.

¶ 42 We review the trial court’s denial of a motion for a mistrial for

an abuse of discretion. People v. Owens, 2024 CO 10, ¶ 125. A

mistrial is a drastic remedy that is warranted only when the

prejudice to the accused is so substantial that its effect on the jury

cannot be remedied by other means. Id.

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B. Analysis

¶ 43 The trial judge’s order to “get up here,” even if said in an angry

or aggressive tone, does not demonstrate the kind of “deep-seated

. . . antagonism” required to compel disqualification or a mistrial.

A.P., ¶ 31 (quoting Liteky, 510 U.S. at 555). Delgado-Cruz does not

cite any case in which a judge’s single harsh comment directed to

counsel resulted in a finding of actual bias and reversal of a

conviction. Our case law is to the contrary. See People v. Drake,

748 P.2d 1237, 1249 (Colo. 1988) (judge’s rude comments to

defense counsel, including telling counsel, “you will keep quiet,” did

not show actual bias); Jennings, ¶ 31 (judge’s brief criticism of

defense counsel did not reflect such intense hostility as to require

recusal); Bocian v. Owners Ins. Co., 2020 COA 98, ¶¶ 24–26 (judge’s

pointed comments to counsel concerning her ethical obligations did

not demonstrate ill will or hostility warranting disqualification).

¶ 44 Delgado-Cruz does not present any separate authority or

argument concerning the denial of the motion for a mistrial. He

simply asserts that the prejudice from the court’s isolated comment

could not be remedied by other means. But generally, a curative

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instruction will suffice. See People v. Salas, 2017 COA 63, ¶ 14. In

fact, after the bench conference at issue, defense counsel informed

the court that she intended to request a curative jury instruction.

She never asked for an instruction, though. Under these

circumstances, and given that there was no basis to disqualify the

trial judge, we discern no error in the denial of the motion for a

mistrial. Cf. People v. Mersman, 148 P.3d 199, 204 (Colo. App.

2006) (where the defendant did not request a curative instruction,

the court did not abuse its discretion in denying the motion for

mistrial).

IV. Cumulative Error

¶ 45 We reject Delgado-Cruz’s cumulative error claim. “For reversal

to occur based on cumulative error, a reviewing court must identify

multiple errors that collectively prejudice[d]” the defendant’s

substantial rights. Howard-Walker v. People, 2019 CO 69, ¶ 25.

Here, we have assumed a single harmless error. The doctrine of

cumulative error is therefore inapplicable. People v. Daley, 2021

COA 85, ¶ 142.

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V. Costs of Prosecution

¶ 46 After trial, the prosecution filed a motion to recover its costs of

prosecution. Delgado-Cruz objected and requested a hearing “on

his ability to pay” the costs. He did not provide any information

about his financial circumstances. The court issued an order giving

Delgado-Cruz an opportunity to “file any additional objection” to the

prosecution’s motion by a certain date, but Delgado-Cruz did not

supplement his original objection. The court then granted the

prosecution’s motion without a hearing.

¶ 47 On appeal, Delgado-Cruz asserts that he was entitled to a

hearing on his ability to pay the costs of prosecution. We review a

court’s imposition of costs for an abuse of discretion. People v.

Sinovcic, 2013 COA 38, ¶ 9.

¶ 48 Ordinarily, upon the defendant’s conviction, the court must

enter judgment against him for the costs of prosecution.

§ 18-1.3-701(1)(a), C.R.S. 2024. But if the court determines that

the defendant is unable to pay costs, the state must pay them.

§ 16-18-101(1), C.R.S. 2024.

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¶ 49 We disagree that a defendant is entitled to a hearing on his

ability to pay simply because he requests one. Chief Justice

Directive 85-31, Directive Concerning the Assessment and

Collection of Statutory Fines, Fees, Surcharges, and Costs in

Criminal Juvenile, Traffic and Misdemeanor Cases (amended Aug.

2011) (CJD 85-31), provides that the court “shall” waive costs

“based on a review” of specified documents. It does not mention a

hearing. And Delgado-Cruz has not directed us to any published

appellate opinion requiring a trial court to hold a hearing on a

defendant’s ability to pay costs.

¶ 50 Even assuming a court should hold a hearing under certain

circumstances, a hearing was unnecessary in this case because

Delgado-Cruz’s objection did not create any fact dispute that had to

be resolved at a hearing. Under CJD 85-31, the court may not

waive costs unless it finds that the defendant is unable to pay

them, based on a “financial affidavit or similar supporting

documentation.” Delgado-Cruz’s objection did not even assert that

he had a present and future inability to pay costs, much less

include any evidence of indigency.

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¶ 51 For this reason, the failure to hold a hearing did not violate

Delgado-Cruz’s due process rights. Due process is a flexible

standard that calls for such procedural protections as the

particular situation demands. See A.M. v. A.C., 2013 CO 16, ¶ 28.

In this situation, a defendant is entitled to “a fair and reasonable

opportunity to review and object to the prosecution’s request for its

costs.” People v. Palomo, 272 P.3d 1106, 1111 (Colo. App. 2011).

Delgado-Cruz had that opportunity. Even if additional process is

sometimes available, he was not entitled to it because he failed to

sufficiently plead indigency.

VI. Disposition

¶ 52 The judgment is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.

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