People v. Gray

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 27, 2025

2025COA23

No. 23CA0085, People v. Gray — Constitutional Law — Sixth
Amendment — Confrontation Clause; Evidence — Witnesses —
Cross-Examination — Probationary Status

This is the first published opinion to consider whether the

holding of Margerum v. People, 2019 CO 100, 454 P.3d 236 — that

criminal defense counsel can always cross‑examine a witness

regarding the witness’s probationary status — extends to situations

where the witness was on probation when the witness provided law

enforcement officers with a statement regarding the underlying

incident but is no longer on probation at the time of trial. The

division concludes that, under the facts of this case, the Margerum

rule does not apply to a witness who satisfied the terms of his

probation before trial.
COLORADO COURT OF APPEALS 2025COA23

Court of Appeals No. 23CA0085
Weld County District Court No. 21CR1485
Honorable Julie C. Hoskins, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mardi Jean Gray,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Johnson and Moultrie, JJ., concur

Announced February 27, 2025

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendants in Colorado have the unconditional right to

cross-examine a prosecution witness about the witness’s

probationary status when the witness is on probation in the “same

sovereign” at the time of trial. Margerum v. People, 2019 CO 100,

¶ 12, 454 P.3d 236, 240. The supreme court noted in Margerum

that, “when a prosecution witness is on probation, the key question

is whether there exists a ‘might have been influenced nexus’

between the witness’s probationary status and her potentially

biased motive for testifying.” Id. at ¶ 11, 454 P.3d at 239 (quoting

Kinney v. People, 187 P.3d 548, 560 (Colo. 2008)). For this reason,

the jury must be permitted to consider whether the witness’s trial

testimony “could be prompted by fear or concern for possible

jeopardy to his probationary status,” id. (quoting People v. Bowman,

669 P.2d 1369, 1375 (Colo. 1983)), and whether the witness “might

be influenced by a promise of, or hope or expectation of, immunity

or leniency,” id. (quoting People v. King, 498 P.2d 1142, 1144-45

(Colo. 1972)). “Therefore, the defense must be permitted to

question a prosecution’s witness about her probationary status

when the witness is on probation in the same sovereign as the

prosecution.” Id. at ¶ 12, 454 P.3d at 240.

1
¶2 A division of this court extended the reasoning of Margerum to

situations where the witness faces criminal charges in the same

judicial district in which the prosecution seeks the witness’s

testimony. See People v. Reynolds-Wynn, 2024 COA 33, ¶ 36, 551

P.3d 1211, 1218. As the Reynolds-Wynn division explained, “the

defense must be permitted to question a prosecution witness about

his pending criminal charge in the same judicial district in which

the witness is testifying against the defendant” because, consistent

with the reasoning of Margerum, “[t]he pendency of such a charge

against the witness is always relevant to show that the witness’s

testimony ‘might be influenced by a promise for, or hope or

expectation of, immunity or leniency.’” Id. (quoting Kinney, 187

P.3d at 560).

¶3 In this appeal, Mardi Jean Gray seeks reversal of her

judgment of conviction for second degree assault and third degree

assault. She contends that the trial court violated her

constitutional right to confront her accusers by not permitting her

to cross-examine Timothy Canciamilla, the alleged victim, about his

probationary status at the time he spoke with police officers

regarding an incident in which Gray struck and choked him (the

2
incident), even though Canciamilla was no longer on probation at

the time of trial. We decline to extend the unconditional right of

cross-examination articulated in Margerum to cases where the

witness is no longer on probation at the time of trial.

¶4 Gray also raises a sufficiency of the evidence challenge,

contending that the prosecution failed to disprove her affirmative

defense of self-defense beyond a reasonable doubt.

¶5 Because we disagree with both contentions, we affirm.

I. Background

¶6 Gray and Canciamilla were dating at the time of the incident.

There was no dispute that Gray repeatedly struck Canciamilla and

choked him. Gray’s theory of defense at trial was that she had

acted in self-defense after Canciamilla shoved her down stairs by

the throat. In Part II.A.1 below, we summarize the evidence

introduced at trial regarding the incident.

¶7 We address Gray’s sufficiency of the evidence argument first

because, if we were to reverse on that issue, we would not need to

address her argument that the court abused its discretion and

violated her rights under the Confrontation Clauses of the United

States and Colorado Constitutions.

3
II. Analysis

A. Sufficiency of the Evidence Regarding
Gray’s Affirmative Defense of Self-Defense

1. Additional Facts

¶8 The jury could reasonably have found the following facts from

the evidence introduced at trial.

¶9 Gray and Canciamilla began arguing in Gray’s home one

evening after they had been drinking together. Edward Epperson;

his wife, Desiree Jones; and their children, who also lived in the

house, were present during the incident.

¶ 10 Epperson told Gray and Canciamilla to stop arguing and to

“keep it down.” Gray asked Canciamilla to leave the house. He

walked to his car, realized he was too intoxicated to drive, and

returned to the house.

¶ 11 One of Epperson and Jones’s children ran out of the house

and told Canciamilla that Gray had “scratched her or something.”

Canciamilla confronted Gray in the basement.

¶ 12 Canciamilla “screamed and yelled” at Gray, saying, “[I]f you’re

going to hit a child, hit me.” Canciamilla told the responding

officers that Gray then paused and started hitting him on the side

4
of the head. After Canciamilla said, “[I]s that all you have?” Gray

put her hands around his throat and squeezed his neck.

Canciamilla struggled to breathe, gasped for air, and gagged.

Epperson testified that Canciamilla was “pretty purple” and that

“his eyes rolled in the back of his head like he was gasping for air.”

¶ 13 Gray struck Canciamilla five or six times. Canciamilla told the

officers that he did not defend himself and did not put his hands on

Gray.

¶ 14 Epperson grabbed Gray, pulled her off Canciamilla, and told

her to go upstairs. Jones called a friend, Chelsea Kretzmeier, and

asked her to “come get the kids and . . . get them out of the house

until [Jones] could get the situation resolved.”

¶ 15 When Kretzmeier arrived at the house, Gray “was yelling and

screaming” at Epperson and Jones. Kretzmeier testified that Gray

“went after [Canciamilla] as he went outside,” and she was “still

screaming and yelling.” Canciamilla was crying by his car.

Kretzmeier said she had to use physical force to keep Gray away

from Canciamilla. Kretzmeier testified, “When it was clear to me

that [Gray] was not going to de-escalate, I told [Jones] it was time to

call the cops, that this was getting out of control.”

5
¶ 16 Jones called 911. The responding officers spoke with Gray,

Canciamilla, Epperson, Jones, and Kretzmeier.

¶ 17 Gray told Officer Janet Steingart that, before she struck

Canciamilla, “[h]e shoved me down the stairs by my throat.” Officer

Steingart said that Gray gave her a tour of the house and showed

her the stairs down which Canciamilla allegedly shoved her.

According to Officer Steingart, the landing at the bottom of the

stairs was made of concrete.

¶ 18 Officer Steingart reported seeing dried blood on Gray’s lips,

although she did not observe any physical evidence that Gray had

been thrown down the stairs to the basement, as she claimed.

According to Officer Steingart, Gray did not have any injuries

“consistent with being shoved down” stairs or hitting concrete, and

there was no “hole in the wall” or other indicia of a fight at the

stairs. Kretzmeier testified that Gray said the incident was not her

fault and that Kretzmeier did not observe any injuries on Gray “that

[she] could tell.”

¶ 19 Epperson told Officer Doryian Barboza that the dried blood

around Gray’s mouth may have resulted from her biting her lips or

6
from her “bad gums.” Gray told Officer Steingart that she had

“probably” bit her lip or tongue.

¶ 20 None of the witnesses, including the four witnesses the

defense called, said they saw or heard Canciamilla shove Gray down

the basement stairs. Gray exercised her Fifth Amendment right not

to testify. See People v. Roberson, 2016 CO 36, ¶ 21, 377 P.3d

1039, 1042-43 (“The Fifth Amendment to the United States

Constitution, which is applicable to the states through the

Fourteenth Amendment, . . . guarantees that no person ‘shall be

compelled in any criminal case to be a witness against himself.’”)

(quoting U.S. Const. amend. V); see also Colo. Const. art. II, § 18.

Therefore, Officer Steingart’s testimony regarding Gray’s statements

to her was the only evidence introduced at trial supporting the

defense’s argument that, before Gray struck and choked

Canciamilla, he had shoved Gray down stairs by the throat.

2. Standard of Review

¶ 21 “[W]e review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the convictions.” People v. Harrison, 2020 CO 57, ¶ 31,

465 P.3d 16, 23 (quoting Dempsey v. People, 117 P.3d 800, 807

7
(Colo. 2005)); see People v. Tomaske, 2022 COA 52, ¶¶ 31-32, 516

P.3d 534, 539-40 (explaining that the court reviews de novo

whether the prosecution presented sufficient evidence to disprove

an affirmative defense).

3. The Law Governing Sufficiency of the Evidence Challenges
When a Defendant Argues Self-Defense

¶ 22 “The Due Process Clauses of the United States and Colorado

Constitutions require proof of guilt beyond a reasonable doubt on

each of the essential elements of a crime.” People v. Duncan, 109

P.3d 1044, 1045 (Colo. App. 2004). To determine whether the

prosecution presented sufficient evidence to support a defendant’s

conviction, we ask “whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” People v. Donald, 2020 CO

24, ¶ 18, 461 P.3d 4, 7 (quoting Clark v. People, 232 P.3d 1287,

1291 (Colo. 2010)). In conducting this analysis, we “give the

prosecution the benefit of every reasonable inference which might

8
be fairly drawn from the evidence.” Harrison, ¶ 32, 465 P.3d at 23

(quoting People v. Perez, 2016 CO 12, ¶ 25, 367 P.3d 695, 701).

¶ 23 A defendant may raise a sufficiency of evidence argument for

the first time on appeal, as Gray did here. See McCoy v. People,

2019 CO 44, ¶ 2, 442 P.3d 379, 382.

¶ 24 “‘Affirmative defense’ means that unless the state’s evidence

raises the issue involving the alleged defense, the defendant, to

raise the issue, shall present some credible evidence on that issue.”

§ 18-1-407(1), C.R.S. 2024. When a defendant asserts an

affirmative defense, it “effectively becomes an additional element of

the charged offense.” Roberts v. People, 2017 CO 76, ¶ 22, 399 P.3d

702, 705.

¶ 25 “If the issue involved in an affirmative defense is raised, then

the guilt of the defendant must be established beyond a reasonable

doubt as to that issue as well as all other elements of the offense.”

§ 18-1-407(2). “[T]he prosecution bears the burden of proving

beyond a reasonable doubt that the affirmative defense is

inapplicable.” Roberts, ¶ 22, 399 P.3d at 705. Thus, “[w]hile the

defendant bears the burden of going forward, Colorado law dictates

that once that burden has been met, the prosecution has the

9
burden of disproving the claimed affirmative defense beyond a

reasonable doubt.” People v. Garcia, 113 P.3d 775, 784 (Colo.

2005).

¶ 26 Self-defense is an affirmative defense created by statute.

Section 18-1-704(1), C.R.S. 2024, says, in relevant part, that

a person is justified in using physical force
upon another person in order to defend
[herself] . . . from what [she] reasonably
believes to be the use or imminent use of
unlawful physical force by that other person,
and [she] may use a degree of force which [she]
reasonably believes to be necessary for that
purpose.

¶ 27 A defendant is entitled to an instruction on self-defense if the

defendant presents “some credible evidence” supporting that

affirmative defense. Pearson v. People, 2022 CO 4, ¶ 23, 502 P.3d

1003, 1008. In this case, the court gave the jury a self-defense

instruction. Thus, the issue before us is not whether Gray was

entitled to argue self-defense based on the evidence introduced at

trial; rather, we must decide whether, after considering the

evidence, the jury could reasonably have found that the prosecution

disproved beyond a reasonable doubt either of the two prongs of

self-defense specified in section 18-1-704(1).

10
¶ 28 Therefore, the prosecution could have defeated Gray’s

affirmative defense of self-defense by proving beyond a reasonable

doubt that Gray (1) did not reasonably believe that Canciamilla was

using or would imminently use unlawful physical force or (2) did not

use a degree of force which she reasonably believed to be necessary

to defend herself. See § 18-1-704(1).

4. The Prosecution Introduced Sufficient Evidence to
Disprove Gray’s Self-Defense Affirmative Defense
Beyond a Reasonable Doubt

¶ 29 We initially consider whether the prosecution’s evidence was

“sufficient to disprove beyond a reasonable doubt” that Gray

reasonably believed Canciamilla was using or would imminently use

unlawful physical force. Harrison, ¶¶ 10-12, 24, 36-39, 41, 465

P.3d at 19-20, 22, 24-25 (holding that the prosecution presented

sufficient evidence to disprove the defendant’s affirmative defense

that someone had in good faith reported defendant’s drug overdose

to “the 911 system” and, therefore, defendant was immune from

liability for possession of a controlled substance and drug

paraphernalia). “The touchstone of self-defense is whether, from

the standpoint of the defendant, [her] belief that danger was

imminent is reasonable.” People v. Rodriguez, 888 P.2d 278, 286

11
(Colo. App. 1994). We disagree with Gray’s implication that her

statement to Officer Steingart that Canciamilla shoved her down the

basement stairs by the throat, without more, establishes that the

prosecution failed to meet its burden of proof on the first prong of

section 18-1-704(1).

¶ 30 As noted above, no witnesses testified that they had seen or

heard Canciamilla shove Gray down the basement stairs, much less

shove her by the throat. Rather, the witnesses in the house at the

time of the incident painted a picture of a one-sided altercation in

which Gray struck the first blow, and Canciamilla passively took

Gray’s blows without fighting back. Canciamilla told the officers

that, although he “screamed and yelled” at Gray, he did not “get

physical” with her and did not defend himself. He said he made

“the conscious decision not to hit her back.”

¶ 31 Epperson testified that he heard Gray yelling at Canciamilla,

did not “hear any items being knocked over or anything like that” —

“just the yelling” — and saw Gray with “her hands around

[Canciamilla’s] throat.” Kretzmeier testified that she (1) only heard

one person — Gray — yelling; (2) saw Gray follow Canciamilla

outside the house “screaming and yelling”; (3) observed Canciamilla

12
crying; (4) had to use physical force to keep Gray away from

Canciamilla because Gray “would just not stop”; (5) did not see any

injuries on Gray; and (6) observed fresh scratch marks and bruises

on Canciamilla’s neck and arms. Jones testified that she saw Gray

strike Canciamilla and saw Gray’s right hand on his throat. Jones

further said that Canciamilla did not try to defend himself.

¶ 32 It was the jury’s role to decide the credibility of the witnesses.

“We do not reweigh the evidence or assess witnesses’ credibility on

appeal because the jury is the sole judge of witness credibility.”

People v. Griffiths, 251 P.3d 462, 465 (Colo. App. 2010). In light of

the evidence presented at trial, the jury could have disbelieved

Gray’s statement to Officer Steingart that Canciamilla had pushed

her down stairs by her throat. Cf. People v. Kessler, 2018 COA 60,

¶ 12, 436 P.3d 550, 554 (The “fact finder is not required to accept

or reject a witness’s testimony in its entirety; it may believe all, part,

or none of a witness’s testimony.”). Therefore, the jury could have

reasonably found that the prosecution proved beyond a reasonable

doubt that Gray did not reasonably believe Canciamilla was using

or would imminently use unlawful physical force.

13
¶ 33 Next, we consider whether the evidence was sufficient to

support a finding beyond a reasonable doubt that Gray did not use

a degree of force that she reasonably believed was necessary — the

second prong of section 18-1-704(1). As noted above, the evidence

supported a finding that Canciamilla did not push Gray down the

basement stairs and that, although Canciamilla yelled at Gray, he

did not use physical force against her or indicate that he was about

to use physical force. Rather, the unrebutted evidence showed that

Gray repeatedly struck Canciamilla; she choked him until he

struggled to breathe, gasped for air, and gagged; and Canciamilla

passively allowed Gray to hit him again and again. Given these

facts, the jury could have reasonably concluded that the

prosecution proved beyond a reasonable doubt that Gray used an

unreasonable amount of physical force against Canciamilla.

¶ 34 Accordingly, we hold that the evidence, when viewed as a

whole and in the light most favorable to the prosecution, was

substantial and sufficient to support a conclusion by a reasonable

mind that Gray did not act in self-defense.

14
B. Cross-Examination of Canciamilla
Regarding His Probationary Status
at the Time He Spoke with Responding Officers

1. Additional Facts

¶ 35 Canciamilla told the police officers who responded to Jones’s

911 call that:

• He had drunk seven or eight shots of whiskey that night.

• He had been hit and choked.

• The hitting and choking had made his throat hurt.

Canciamilla also admitted to the officers that he began yelling at

Gray before she raised her voice at him. But as we explain below,

the jury did not hear what Canciamilla told the officers about the

altercation.

¶ 36 At the time of the incident, Canciamilla was on probation for a

misdemeanor conviction for driving under the influence. Under the

terms of his probation, he was not permitted to consume alcohol or

violate any state or federal law. He was no longer on probation

when the trial began, however.

¶ 37 Before opening statements, defense counsel argued that,

following Margerum, the court should permit her to cross-examine

Canciamilla about his probationary status at the time he spoke

15
with the officers to demonstrate that he had a “bias[ed] motive for

. . . making the police report and claiming essentially that it was an

unprovoked attack.” Defense counsel asserted that Gray had the

right to argue to the jury that Canciamilla had “a pretty strong bias

and motive for him to fabricate essentially being a victim” in his

discussions with the officers to avoid revocation of his probationary

status and that the jury could therefore conclude he was the initial

aggressor, and Gray had acted in self-defense. The court disagreed,

noting that because Canciamilla was no longer on probation, he

was not in a vulnerable position at the time of trial.

2. Standard of Review

¶ 38 A defendant implicates the Confrontation Clauses in the

United States and Colorado Constitutions, U.S. Const. amend VI;

Colo. Const. art. II, § 16, by arguing that the trial court erroneously

prohibited her counsel from cross-examining a witness regarding

the witness’s probationary status. See Reynolds-Wynn, ¶ 32, 551

P.3d at 1218. We review de novo a defendant’s contention that the

trial court violated her rights under the Confrontation Clauses. Id.

at ¶ 31, 551 P.3d at 1218. If there is no infringement on “the

defendant’s rights secured by the Confrontation Clause” in the

16
United States Constitution, we review a trial court’s limitation on a

defendant’s cross-examination for an abuse of discretion. Merritt v.

People, 842 P.2d 162, 166 (Colo. 1992).

3. Under the Facts of the Case, Gray’s Counsel Did Not Have the
Right to Cross-Examine Canciamilla Regarding
His Probationary Status at the Time of the Incident

¶ 39 Gray asks us to extend Margerum’s reasoning by “allowing

cross-examination of a witness’s probationary status at the time of

the offense and relative to a witness’s statements before trial to

cooperate with police,” even if the witness is no longer on probation

at the time of trial. She quotes Margerum: “when a prosecution

witness is on probation, the key question is whether there exists a

‘might have been influenced nexus’ between the witness’s

probationary status and [his] potentially biased motive for

testifying” and “that this nexus always exists when a prosecution

witness is on probation in the same sovereign.” Margerum,

¶¶ 11-12, 454 P.3d at 239-40.

¶ 40 Criminal defendants have a constitutional right to confront the

witnesses against them. Id. at ¶ 10, 454 P.3d at 239 (citing U.S.

Const. amend VI; Colo. Const. art. II, § 16). “This right is primarily

secured through cross-examination.” Id. “[W]hen a witness testifies

17
against a party, the party has a right to impeach that witness’s

credibility.” Id. at ¶ 11, 454 P.3d at 239.

¶ 41 The cases that Gray cites in support of her argument that the

trial court violated her Confrontation Clause rights all concerned

witnesses who were involved with the criminal justice system when

they testified against the defendant or who had previously obtained

favorable treatment. See Delaware v. Van Arsdall, 475 U.S. 673,

679-80 (1986) (holding that the trial court violated the defendant’s

rights under the Confrontation Clause of the United States

Constitution by not permitting defense counsel to cross-examine a

witness about the dismissal of his criminal charge after he agreed to

speak with the prosecutor about the defendant’s alleged crime);

Davis v. Alaska, 415 U.S. 308, 309-11, 320-21 (1974) (concluding

that the trial court erred by barring defense counsel from

cross-examining a witness regarding his probationary status at the

time of his pretrial identification of the defendant and at the time of

trial); Margerum, ¶ 12, 454 P.3d at 240; Kinney, 187 P.3d at 559-61

(“[T]he trial court should allow broad cross-examination regarding

the witness’s motive for testifying whenever the witness has a

pending case and his or her ‘testimony against the defendant might

18
be influenced by a promise of, or hope or expectation of, immunity

or leniency with respect to the pending charges against him, as a

consideration for testifying against the defendant.’” (quoting King,

498 P.2d at 1144-45)); see also People v. Jones, 971 P.2d 243, 244

(Colo. App. 1998) (rejecting the defendant’s argument that evidence

of the victim’s probationary status was admissible to show that her

cooperation with, and statements to, police following the underlying

incident were motivated by her “vulnerable status as a probationer,”

because no evidence suggested the victim believed her probationary

status was in jeopardy), overruled on other grounds by People v.

Segovia, 196 P.3d 1126, 1132 (Colo. 2008).

¶ 42 In her appellate briefs, Gray does not direct us to any case

holding that a trial court necessarily violates the defendant’s

Confrontation Clause rights by barring defense counsel from

cross-examining a prosecution witness regarding the witness’s

probationary status at the time the witness reported the defendant’s

alleged criminal conduct to law enforcement officers, even though

the witness is no longer on probation at the time of trial. Likewise,

at oral argument, Gray’s counsel could not cite a case holding that

defendants have the right to cross-examine witnesses regarding

19
their probationary status when the witnesses are no longer on

probation when trial begins. Nonetheless, Gray urges us to extend

Margerum’s reasoning to such situations because a witness’s

probationary status at the time of the offense “may have acted as

motivation for the witness to cooperate with the police, especially

when the witness could hold a belief they otherwise could be

punished in relation to their probation or suspected of a crime.”

¶ 43 In Margerum, the court provided three reasons why “the

defense must be permitted to question a prosecution’s witness

about [his] probationary status when the witness is on probation in

the same sovereign as the prosecution.” ¶ 12, 454 P.3d at 240.

¶ 44 First, the court explained that “a prosecution witness who is

on probation in the same state court system in which [he] is

testifying is in a vulnerable position.” Id. “That witness’s ability to

remain on probation is potentially in jeopardy and the threat of

probation revocation — whether real or merely perceived — creates

an incentive for a witness to try to curry favor with the prosecution

who can seek the revocation of that witness’s probation.” Id.

¶ 45 Similarly, “a prosecution witness who faces a pending charge

in the same judicial district in which the prosecutor asks him to

20
testify is at least as vulnerable as a witness on probation.”

Reynolds-Wynn, ¶ 34, 551 P.3d at 1218. “This is so because

prosecutors have ‘broad discretion in the performance of [their]

duties,’ including whether to consent to a deferred prosecution,

whether and what type of plea deal to offer, the severity of the

sentence to recommend, or even whether to dismiss the charge.”

Id. (alteration in original) (quoting People v. Dist. Ct., 632 P.2d 1022,

1024 (Colo. 1981)); see also Van Arsdall, 475 U.S. at 679 (“By thus

cutting off all questioning” about the dismissal of the charge against

the witness, which “a jury might reasonably have found furnished

the witness a motive for favoring the prosecution in his testimony,

the court’s ruling violated respondent’s rights secured by the

Confrontation Clause.”).

¶ 46 Second, the court observed that “the desire to potentially curry

favor with a prosecutor who can affect a witness’s probation creates

at least a perception that the witness has a motive to provide

favorable testimony for the prosecution.” Margerum, ¶ 12, 454 P.3d

at 240.

¶ 47 Third, the court reiterated the well-established principle that

“the witness’s credibility is always relevant, meaning parties should

21
be afforded wide latitude during cross-examination to discover any

potential source of bias and, more importantly, to provide the jury

with all relevant information needed to make a credibility

determination.” Id.

¶ 48 The common thread running through the three reasons

underlying Margerum is the possibility that the jury could perceive

that the witness had an interest in currying favor with the

prosecution to attempt to obtain a benefit that the prosecution had

the power to confer, such as dismissal of a criminal charge, see Van

Arsdall, 475 U.S. at 679-80; immunity or leniency regarding

pending charges, see Reynolds-Wynn, ¶ 34, 551 P.3d at 1218;

Kinney, 187 P.3d at 560-61; or favorable treatment while on

probation, see Davis, 415 U.S. at 320-21; Margerum, ¶ 13, 454 P.3d

at 240; Jones, 971 P.2d at 244. Under these circumstances, the

jury could question the witness’s credibility if it believed the witness

was motivated by a desire to please the prosecution. Significantly,

the cases focus on how the witness’s trial testimony — not any

statements that the witness may have previously provided to law

enforcement officers — “might be influenced by a promise for, or

22
hope or expectation of, immunity or leniency.” Reynolds-Wynn,

¶ 36, 551 P.3d at 1218 (quoting Kinney, 187 P.3d at 560).

¶ 49 These reasons are premised on the assumption that the

witness could have reasonably contemplated what benefits he could

obtain in exchange for assisting the prosecution. But there is a

weaker connection between a witness’s consideration of this type of

possible agreement with prosecutors and the witness’s statements

to law enforcement officers regarding a purported criminal act.

¶ 50 When police officers ask a witness on probation for

information about a purported crime but the witness is no longer on

probation at the time of trial, the witness may have no reasonable

expectation that the prosecutors who possess the authority to seek

the revocation of the witness’s probationary status would give the

witness preferential treatment as a reward for the witnesses’ prior

cooperation with the officers. At the time the witness spoke with

the officers, the prosecutors likely knew nothing about the

purported crime. This situation is many steps removed from a

scenario in which the prosecution asks a witness on probation to

testify at trial. Those steps include the police officer’s decision to

arrest the defendant, the prosecution’s investigation into the

23
matter, its decision to bring charges against the defendant, and

finally its selection of which witnesses to call at trial.

¶ 51 For these reasons, we decline to apply Margerum’s bright-line

rule to witnesses who were on probation when they provided law

enforcement officers with information regarding the offense for

which the defendant was charged but who are no longer on

probation at the time of trial. Thus, we hold that a defendant has

no automatic right to cross-examine such a witness regarding that

witness’s one-time probationary status.

¶ 52 Cases from other jurisdictions confirm this conclusion. For

example, in State v. Rincker, the Nebraska Supreme Court held that

defense counsel has no right to cross-examine a witness regarding

his probationary status before trial. 423 N.W.2d 434, 441 (Neb.

1988). If the witness is no longer on probation at the time of trial,

he is “no longer vulnerable to the State’s reprisal” because “he had

been punished, and the effects of his violation of probation had

become final and could not be enhanced by State action.” Id. For

the same reasons, the Wyoming Supreme Court concluded that the

defense could not question a witness about her former status as a

probationer. Salaz v. State, 561 P.2d 238, 241 (Wyo. 1977) (“[T]he

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witness . . . was not on probation or parole. She was not subject to

loss of freedom or other punishment due to the previous juvenile

adjudication. She had no fear of revocation of probation or parole if

she failed to cooperate with the police.”).

¶ 53 Our rejection of a bright-line rule that a defendant always has

the right to cross-examine a witness about the witness’s earlier

probationary status if the witness is no longer on probation by the

time of trial does not mean a defendant can never ask about a

witness’s prior probation. For this reason, we consider whether

Gray had such a right under the facts of this case.

¶ 54 Nothing in the record suggests that Canciamilla considered his

probationary status when he spoke with the officers. Moreover, the

record does not show how soon after the incident Canciamilla

satisfied the terms of his probation. If Canciamilla had completed

his probation shortly after the incident, the prosecutors would have

had no power to reward or punish him when they first reviewed his

witness statement. Even if Gray had a constitutional right to

cross-examine Canciamilla regarding his probationary status,

defense counsel did not show that, at some point following

Canciamilla’s statements to the officers, the prosecutors were

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authorized to ask the court to revoke his probation. See Margerum,

¶ 12, 454 P.3d at 240 (noting that the “witness’s ability to remain

on probation is potentially in jeopardy and the threat of probation

revocation — whether real or merely perceived — creates an

incentive for a witness to try to curry favor with the prosecution who

can seek the revocation of that witness’s probation”) (emphasis

added).

¶ 55 Moreover, following the attorneys’ colloquy with the court

regarding Margerum, neither the prosecutor nor defense counsel

asked Canciamilla — or any other witness — what Canciamilla told

the investigating officers. Defense counsel’s cross-examinations of

Canciamilla and Nicholas Romito, the only one of the responding

officers who testified during the prosecution’s case, focused on the

injuries Canciamilla reported to the officers.

¶ 56 Further, as the court noted, disclosing Canciamilla’s former

probationary status to the jury would have created a risk that the

jury would improperly hold the misdemeanor conviction against

him in weighing his credibility. See Banek v. Thomas, 697 P.2d

743, 745 (Colo. App. 1984) (“Generally, credibility may not be

impeached by evidence of prior misdemeanor convictions.”), aff’d,

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733 P.2d 1171 (Colo. 1986). Gray does not contend that she had

the right to cross-examine Canciamilla regarding his prior

misdemeanor conviction to avoid misleading the jury. See People v.

Mejia, 534 P.2d 779, 780 (Colo. 1975) (holding that the trial court

properly allowed cross-examination of a witness regarding his

earlier arrest for misdemeanor possession of marijuana after the

witness testified on direct examination that, “except for

drunkenness, he had never been arrested”).

¶ 57 The court possessed “wide latitude, insofar as the

Confrontation Clause is concerned, to place reasonable limits on

cross-examination based on concerns about, for example, . . .

prejudice, confusion of the issues, . . . or interrogation which is

repetitive or only marginally relevant.” Merritt, 842 P.2d at 166.

The court placed such limits on the defense’s cross-examination of

Canciamilla, but it did not preclude defense counsel from asking

him about inconsistencies between his statements to the police

officers and his trial testimony or about his intoxication at the time

of the incident. We cannot say that the court erred by barring

Gray’s attorney from bringing Canciamilla’s misdemeanor

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conviction to the jury’s attention to avoid the risk that the jury

would discount Canciamilla’s testimony because of that conviction.

¶ 58 Accordingly, we hold that the trial court did not err by

declining to allow defense counsel to cross-examine Canciamilla

regarding his probationary status when he spoke to the officers

about the incident.

III. Disposition

¶ 59 The judgment is affirmed.

JUDGE JOHNSON and JUDGE MOULTRIE concur.

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