v. Thames

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
August 8, 2019

2019COA124

No. 16CA0076, People v. Thames — Constitutional Law — Fifth
Amendment — Fourteenth Amendment — Presumption of
Innocence; Evidence — Exclusion of Relevant Evidence on
Grounds of Prejudice, Confusion, or Waste of Time

This is the first reported Colorado decision that addresses

whether a trial court violates a defendant’s right to be presumed

innocent when it permits the prosecution to show the jury a video of

the defendant wearing a prison uniform. A division of the court of

appeals concludes that the presumption of innocence was not

violated in this instance. In reaching this conclusion, the division

relies on cases from other jurisdictions holding that the risk of

prejudicing the defendant due to his clothing is not present when

the jury is shown a video depicting the defendant in a prison

uniform.
COLORADO COURT OF APPEALS 2019COA124

Court of Appeals No. 16CA0076
Mesa County District Court No. 12CR517
Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Douglas Thames,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE LIPINSKY
Román and J. Jones, JJ., concur

Announced August 8, 2019

Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Alan M. Kratz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Douglas Thames, was the second person convicted

for the sexual assault and murder of J.T. Nineteen years earlier, a

jury had convicted Robert Dewey for the same crimes. The

prosecution’s case against Dewey had included testimony that his

DNA could have been present at the site of the murder. Because of

the state of DNA testing at the time, however, those test results did

not indicate the likelihood that the DNA recovered at the crime

scene matched that of Dewey.

¶2 Fifteen years after Dewey’s conviction, DNA testing using an

improved technology known as STR (Short Tandem Repeat) revealed

that Thames’s DNA was present on objects found at the crime scene

and under J.T.’s fingernails. The STR tests showed there was only

a one in seven sextillion chance that the match to Thames was

random.

¶3 As a result of the new DNA tests, Dewey was exonerated and

released from prison. The same tests led to the filing of charges

against Thames. A jury convicted Thames of first degree murder

after deliberation, first degree felony murder, and first degree sexual

assault.

1
¶4 Thames contends on appeal that the trial court erred in not

allowing him to introduce evidence of Dewey’s conviction or the

DNA test results (the Results) presented at Dewey’s trial. Thames

also contends that the trial court erred in permitting the prosecutor

to comment on his silence during a video-recorded interrogation

(the Interrogation). He further contends that the trial court should

not have permitted the jury to view the video of the Interrogation

because it showed him wearing prison garb. Thames also argues

that the cumulative effect of these errors requires reversal. Lastly,

he argues that the trial court violated his right to be free from

double jeopardy by imposing mandatory statutory surcharges and

costs (the Surcharges) outside his presence after sentencing.

¶5 We affirm but remand with instructions to allow Thames the

opportunity to argue that he is entitled to a statutory waiver of the

Surcharges.

I. Facts and Procedural History

¶6 A neighbor discovered J.T.’s body in the bathtub of her

apartment. J.T. had been beaten, sexually assaulted, and strangled

to death with a dog leash. Pieces of soap had been inserted into her

vagina.

2
¶7 Dewey was an initial suspect. Police arrested him after DNA

testing revealed the possibility that J.T.’s blood was on one of his

shirts. As noted, a jury convicted Dewey for J.T.’s sexual assault

and murder in 1996.

¶8 In 2011, new DNA testing exonerated Dewey. The testing

revealed the presence of Thames’s DNA on the leash and

underneath J.T.’s fingernails, among other locations.

¶9 After reviewing the new DNA results, law enforcement officers

interrogated Thames regarding the murder of J.T. At the time of the

Interrogation, Thames was incarcerated for an unrelated offense.

The People then charged Thames with first degree murder after

deliberation, first degree felony murder, and first degree sexual

assault.

¶ 10 Thames challenged the admissibility of his statements during

the Interrogation on the grounds that he had not knowingly and

intelligently waived his right against self-incrimination. The trial

court granted Thames’s motion to suppress his statements. The

Colorado Supreme Court reversed. People v. Thames, 2015 CO 18,

¶¶ 27-28, 344 P.3d 891, 898.

3
¶ 11 At trial, Thames pursued an alternative suspect defense,

arguing that Dewey had sexually assaulted and killed J.T. (Thames

presented evidence that other individuals may also have committed

the crimes. Evidence concerning those alternative suspects is

irrelevant to this appeal.) After a four-week trial, the jury found

Thames guilty on all counts.

¶ 12 On the murder counts, the trial court sentenced Thames to a

term of life imprisonment in the custody of the Department of

Corrections without the possibility of parole. The court further

sentenced him to forty-eight years imprisonment on the sexual

assault count. The court did not impose any surcharges or costs at

the sentencing hearing.

II. The Trial Court Did Not Abuse Its Discretion by Refusing to
Admit Evidence of Dewey’s Conviction

¶ 13 Thames contends that the trial court violated his

constitutional right to present a defense by refusing to admit

evidence that a jury had previously convicted Dewey of the same

crimes with which Thames was charged. We discern no error.

4
A. Standard of Review

¶ 14 We review a trial court’s ruling on evidentiary issues, including

the admission of alternative suspect evidence, for an abuse of

discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial

court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or is based on an erroneous view of the

law. People v. Elmarr, 2015 CO 53, ¶ 20, 351 P.3d 431, 438.

B. Law Governing Admission of Alternative Suspect Evidence

¶ 15 “Whether rooted directly in the Due Process Clause of the

Fourteenth Amendment or in the Compulsory Process or

Confrontation Clauses of the Sixth Amendment, the Constitution

guarantees criminal defendants ‘a meaningful opportunity to

present a complete defense.’” Holmes v. South Carolina, 547 U.S.

319, 324 (2006) (citations omitted); see also People v. Salazar, 2012

CO 20, ¶ 17, 272 P.3d 1067, 1071. A criminal defendant is entitled

to all reasonable opportunities to present evidence that might tend

to create doubt as to his guilt. Elmarr, ¶ 26, 351 P.3d at 438.

¶ 16 However, the right to present a defense is generally subject to,

and constrained by, familiar and well-established limits on the

admissibility of evidence. Id. at ¶ 27, 351 P.3d at 438. The

5
admissibility of alternative suspect evidence depends on the

strength of the connection between the alternative suspect and the

charged crime. Id. at ¶ 22, 351 P.3d at 438.

¶ 17 To be admissible, alternative suspect evidence must be

relevant under CRE 401 and its probative value must not be

substantially outweighed by the danger of confusion of the issues or

misleading the jury, or by considerations of undue delay under CRE

403. Elmarr, ¶ 22, 351 P.3d at 438. But a defendant does not have

the right to “present all the evidence he wishes or do so in the

manner he chooses.” People v. Saiz, 32 P.3d 441, 449 (Colo. 2001)

(citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

A trial court retains the discretion to assess
the incremental probative value of evidence
offered by a criminal defendant and to exclude
even logically relevant evidence that would be
more wasteful of time, confusing, or
misleading than helpful to the jury. . . . [I]t
may not abdicate its responsibility to guard
against prejudice and promote judicial
efficiency by excluding evidence that is
insufficiently probative to assist in the search
for truth.

Id.

6
C. The Trial Court Did Not Abuse Its Discretion by Limiting the
Evidence Implicating Dewey as an Alternative Suspect

¶ 18 To support his argument that the trial court should have

admitted evidence of Dewey’s conviction, Thames relies on the

reasoning in Gore v. State, 119 P.3d 1268 (Okla. Crim. App. 2005).

There, the Oklahoma Court of Criminal Appeals held that the

defendant was entitled to present evidence that another individual,

Williamson, had been convicted of the same murder for which the

defendant was later charged. Id. at 1276. The appellate court

reasoned that the evidence — which included Williamson’s

statement that he had dreamed of killing the victim, testimony by

law enforcement officers and inmates who overheard Williamson

admit to the crime, and statements by individuals that the victim

had said Williamson had asked her out but she did not want to date

him — was relevant in that it bore on the defendant’s guilt or

innocence. Id. The court held that, by excluding this evidence, the

trial court had deprived the defendant of his constitutional right to

present a defense. Id. at 1277.

7
¶ 19 Gore, however, is distinguishable. In this case, the trial court

allowed Thames to present evidence pointing to Dewey as an

alternative suspect.

¶ 20 The trial court at first excluded evidence of Dewey’s trial and

conviction. But, in the initial part of the trial, the court allowed

Thames to present other evidence that Dewey had sexually

assaulted and murdered J.T., including the following:

• Dewey spent a significant amount of time at J.T.’s

apartment before she died.

• After J.T. kicked Dewey out of her apartment, Dewey said

he was “going to get” J.T.

• Dewey stayed in an apartment near J.T.’s on the night

J.T. was sexually assaulted and murdered, but left that

apartment in the middle of the night.

• Dewey hid in a closet after police arrived at his

apartment complex on the morning J.T.’s body was

discovered.

After the jury had heard this evidence, the court reversed itself and

ruled that the prosecution had opened the door to the introduction

of evidence of Dewey’s trial. Thames contends that, although the

8
jury heard substantial evidence suggesting that Dewey was the

murderer, the trial court erred by not permitting him to tell the jury

that Dewey had been convicted of the crimes.

¶ 21 While evidence of Dewey’s conviction may have been relevant

because it provided a strong logical connection between Dewey and

the sexual assault and murder of J.T., we conclude that the trial

court did not abuse its discretion in refusing to admit evidence of

the conviction under CRE 403. Saiz, 32 P.3d at 446, 449. Unlike

the defendant in Gore, Thames was able to implicate Dewey in the

crimes by repeatedly emphasizing Dewey’s behavior both before and

after the discovery of J.T.’s body. And, as the trial court held, any

probative value of Dewey’s conviction was substantially outweighed

by the danger that the jury would have “speculate[d] about why a

different jury convicted Mr. Dewey” and conflated the issues

between Dewey’s trial and Thames’s trial.

¶ 22 Further, introducing evidence of the conviction would have

extended Thames’s trial. CRE 403; see Elmarr, ¶ 31, 351 P.3d at

439 (court must weigh probative value of alternative suspect

evidence against danger of undue delay). After Thames presented

evidence of Dewey’s conviction, the People would have had an

9
opportunity to introduce evidence of Dewey’s exoneration. This

evidence could have involved extensive testimony regarding the

advances in DNA technology between the time of Dewey’s trial and

his exoneration.

¶ 23 Thus, we conclude that the trial court did not abuse its

discretion in excluding evidence of Dewey’s conviction. (Because we

resolve this issue under CRE 403, we need not address the

unbriefed question of whether, under section 13-65-103(7)(a),

C.R.S. 2018, Dewey’s conviction became a legal nullity upon his

exoneration and, therefore, was not a past conviction. Our opinion

should not be read as holding that an expunged conviction has, or

does not have, legal significance.)

III. The Prosecutor Commented on Thames’s Demeanor While
Answering Questions During the Interrogation and Not on His
Silence

¶ 24 Thames next contends that, in closing argument, the

prosecutor improperly commented on his silence during the

Interrogation. We do not agree because the prosecution commented

on the manner in which Thames answered the officers’ questions

during the Interrogation, and not on Thames’s failure to speak.

10
A. Standard of Review

¶ 25 We review de novo whether the prosecutor impermissibly

commented on a defendant’s right to remain silent. See People v.

Ortega, 2015 COA 38, ¶ 8, 370 P.3d 181, 184 (“‘[W]here

constitutional rights are concerned,’ law application ‘is a matter for

de novo appellate review.’” (quoting People v. Matheny, 46 P.3d 453,

462 (Colo. 2002))).

B. The Prosecution’s Closing Argument

¶ 26 During closing arguments, the prosecutor played clips from

the video of the Interrogation, which the jury had seen during the

trial. The prosecutor reminded the jury that the officers had not

told Thames in advance why they were there and asked the jurors

to “judge [Thames’s] statements in that context.”

¶ 27 The prosecutor said that, in the video, “[Thames] has a total

lack of reaction to being accused of [J.T.’s] murder,” and that the

jurors “can judge it” for themselves. The prosecutor then said,

I say it’s a total lack of reaction. No real
emotion, no anger. Hey, why are you accusing
me of this? What would an innocent person
say when confronted with another persons’
[sic] murder?

11
It would be outrage. It would be defiant [sic].
They would be screaming to the heavens I’m
innocent. How can you accuse me of this? He
wasn’t. No indignation, no surprise. No
surprise that they’re accusing him of murder.

It says yeah, he’s been waiting 18 years for
this interview to happen. That’s the only way
you can explain it. No connection to J.T. and
yet he remembers the night 18 years later.

We’ve been over this. He’s accused of murder
and yet he shows no surprise and/or indignity.

Defense counsel moved for a mistrial, asserting that these

comments violated Thames’s right to remain silent. The trial court

denied the motion.

¶ 28 The prosecutor then played additional clips of the

Interrogation. The prosecutor argued that Thames’s reaction to the

officer’s questions whether he had any remorse about J.T.’s murder

was “[n]o indignation, no surprise, no hostility, no anger . . . .”

¶ 29 After playing another clip, the prosecutor said,

He’s confronted with all these pieces of DNA
being at the crime scene and he’s just nodding.
He’s given out to say yeah, I was having a
relationship with her.

That’s why my DNA is over there. They were
begging him to give them something else.
Some other reason not to think he’s the
murderer and he doesn’t give it to them.

12
In fact, his reaction again is not consistent
with anything close to being a normal reaction.
It is very abnormal and we would submit it is
indicative of his guilt.

He is trying to be too cool about being
confronted with this. He doesn’t know how to
react. A normal reaction is one of anger,
frustration, surprise, shock.

You can name the adjective he doesn’t give us
because he’s calculating what he should be
reacting, and he doesn’t want to show too
much. You can draw your own inferences
from this, but this is a very abnormal reaction.

¶ 30 After the prosecutor’s closing argument, defense counsel

renewed the earlier motion for a mistrial. The court again denied

the motion.

C. Law Governing Comments on a Defendant’s Demeanor

¶ 31 A defendant is constitutionally protected against self-

incrimination and has the right to remain silent. People v. Herr,

868 P.2d 1121, 1124 (Colo. App. 1993). Accordingly, a prosecutor

may not allude to a defendant’s silence as indicating a

consciousness of guilt. People v. Ortega, 198 Colo. 179, 182, 597

P.2d 1034, 1036 (1979) (finding prosecutor’s comment that

“defendant’s statement to the Sheriff didn’t include a protestation of

13
innocence” was reversible error). Such a comment “effectively

penalizes the defendant for exercising a constitutional privilege.” Id.

¶ 32 But a prosecutor may comment on the defendant’s demeanor

while testifying, particularly because jurors receive an instruction

that they may consider courtroom demeanor in assessing a

witness’s credibility. See United States v. Gooch, 506 F.3d 1156,

1160-61 (9th Cir. 2007); People v. Constant, 645 P.2d 843, 846

(Colo. 1982) (“[A] prosecutor may draw reasonable inferences as to

the demeanor and credibility of witnesses. Based upon the facts of

this case, the prosecution’s argument is consistent with the

instruction to the jury which permits the jury to consider the

demeanor of witnesses for credibility purposes.”); cf. People v.

Walters, 148 P.3d 331, 336 (Colo. App. 2006) (stating that the

prosecution may not argue that jurors should discuss among

themselves whether, like the prosecutor, they saw the defendant

laughing and smiling following the victim’s trial testimony).

¶ 33 There is no meaningful distinction between the prosecution’s

commentary on a defendant’s demeanor while testifying in the

courtroom and commentary on a defendant’s demeanor while

answering questions during a video-recorded interrogation that the

14
jurors viewed during trial. A jury may consider the manner in

which a defendant answered questions during an interrogation.

See Rothgeb v. United States, 789 F.2d 647, 650-51 (8th Cir. 1986).

In Rothgeb, a state trooper was allowed to tell the jury that the

defendant had held his breath, “pant[ed] like a dog,” and sweated

profusely while answering questions about the killings of his wife

and child. Id. at 650. “[E]vidence concerning a defendant’s

demeanor during the questioning is . . . admissible . . . .” Id. at

651; see also People v. Vaughn, No. 3-12-0996, 2015 WL 5451332,

at *9 (Ill. App. Ct. Sept. 15, 2015) (unpublished opinion) (finding no

prosecutorial misconduct when the prosecutor commented on the

defendant’s demeanor during recorded interviews shown to the jury

because “[t]he jury was free to make whatever reasonable inferences

it chose to make based upon the evidence”).

D. The Prosecutor’s Closing Argument Properly Commented on
Thames’s Demeanor During the Interrogation

¶ 34 We conclude that the prosecutor did not comment on

Thames’s silence during the interview. Rather, the comments were

a permissible reference to Thames’s demeanor during the

Interrogation. See Rothgeb, 789 F.2d at 650-51.

15
¶ 35 Thames did not sit quietly when questioned during the

Interrogation. He answered the investigators’ questions and

repeatedly maintained his innocence, but without any display of

emotion or anger. Using the same tone of voice, he said he did not

know why investigators had found his DNA in J.T.’s apartment,

denied ever having been in the apartment, denied ever meeting or

seeing J.T., denied ever having sex with J.T., and said he was

partying at another location at the time of the murder.

¶ 36 The prosecutor’s argument thus rested on how Thames denied

his involvement in J.T.’s sexual assault and murder, and not on

Thames’s silence in response to questions regarding his role in the

crimes.

¶ 37 While the prosecutor did note that an innocent person “would

be screaming to the heavens I’m innocent” if accused of murder, the

prosecutor’s argument focused on Thames’s tone of voice and lack

of “real emotion [or] anger” during the questioning. The words the

prosecutor used — “screaming,” “outrage,” “defian[ce],”

“indignation,” “surprise,” “indignity,” “anger,” “frustration,” and

“shock” — highlighted Thames’s flat affect during the Interrogation.

The prosecutor urged the jurors to recall Thames’s “total lack of

16
reaction” and “cool” demeanor, and not his silence in responding to

the officers’ questions, in the video the jurors had seen.

¶ 38 In contrast, Ortega concerned a law enforcement officer’s

testimony regarding the defendant’s questioning following his arrest

for first degree trespass and felony theft of tools from a truck. See

Ortega, 198 Colo. at 181, 597 P.2d at 1035. The defense argued

that the defendant had merely intended to remove the items from

the truck for safekeeping after the property owner had been

involved in an accident.

¶ 39 The prosecutor argued in closing that the defendant had had

an opportunity to explain, but had failed to say, during his

interrogation that he had merely attempted to safeguard the

property. Id. In rebuttal closing, the prosecutor rhetorically asked

why the defendant’s statement had not included a protestation of

innocence. See id. at 181-82, 597 P.2d at 1035-36.

¶ 40 The supreme court held that these statements were an

improper commentary on the defendant’s exercise of his right to

remain silent because they “expressly directed the jury to consider,

as evidence of the defendant’s guilt, his failure to protest his

innocence or to offer an exculpatory statement.” Id. at 183, 597

17
P.2d at 1037; see United States v. Velarde-Gomez, 269 F.3d 1023,

1030-33 (9th Cir. 2001) (holding that prosecutor’s argument

regarding the defendant’s lack of response when confronted with

evidence against him violated the defendant’s privilege against self-

incrimination and was not merely commentary on his demeanor);

People v. Welsh, 58 P.3d 1065, 1071 (Colo. App. 2002) (“[T]he use of

pre-arrest silence when the defendant does not testify

impermissibly burdens the privilege guaranteed by the Fifth

Amendment and thus is inadmissible in the prosecution’s case-in-

chief as substantive evidence of guilt or sanity.”), aff’d, 80 P.3d 296

(Colo. 2003).

¶ 41 Unlike the impermissible arguments in Ortega, Velarde-Gomez,

and Welsh, the prosecutor in this case did not comment on

Thames’s silence because Thames was not silent during the

Interrogation. As the jurors saw for themselves when they watched

the video, Thames responded to the investigators’ questions and

denied having sexually assaulted or killed J.T. The prosecutor

focused on the manner in which Thames answered those questions.

For this reason, we conclude that the prosecutor did not

impermissibly comment on Thames’s silence in violation of his right

18
against self-incrimination. See Gooch, 506 F.3d at 1160-61;

Constant, 645 P.2d at 847.

IV. The Trial Court Did Not Err by Permitting the Jury to View the
Video of the Interrogation

¶ 42 Thames next argues that the trial court erred in permitting the

jury to view the video of the Interrogation because it depicted him

wearing a prison uniform. We do not agree.

A. Standard of Review

¶ 43 A reviewing court may not reverse a trial court’s decision to

admit or exclude evidence absent a showing that the trial court

abused its discretion. People v. Gibbens, 905 P.2d 604, 607 (Colo.

1995); People v. Dist. Court, 869 P.2d 1281, 1285 (Colo. 1994).

When reviewing a trial court’s admission of evidence in light of the

balancing test of CRE 403, an appellate court must assign to the

evidence the maximum probative value and the minimum unfair

prejudice that a reasonable fact finder might attribute thereto.

Gibbens, 905 P.2d at 607. To overcome this presumption in favor of

the trial court’s ruling, the defendant must demonstrate that the

decision was “manifestly arbitrary, unreasonable, or unfair.” People

19
v. Ibarra, 849 P.2d 33, 38 (Colo. 1993); see also People v.

Czemerynski, 786 P.2d 1100, 1108 (Colo. 1990).

B. Law Governing the Presumption of Innocence

¶ 44 The Fourteenth Amendment to the United States Constitution

guarantees defendants in state criminal cases the right to a fair

trial. Estelle v. Williams, 425 U.S. 501, 503 (1976). And the

presumption of innocence is “a basic component of a fair trial under

our system of criminal justice.” Id.

¶ 45 That presumption “is directly undermined when the defendant

is required to appear before the jury in visible restraints or prison

clothes.” People v. Knight, 167 P.3d 147, 153-54 (Colo. App. 2006).

“Thus, the Fifth and Fourteenth Amendments prohibit the use of

physical restraints visible to the jury absent a trial court

determination, in the exercise of its discretion, that they are

justified by a state interest specific to a particular trial.” Deck v.

Missouri, 544 U.S. 622, 629 (2005).

C. Showing the Jury the Video of the Interrogation Did Not
Violate the Presumption of Innocence

¶ 46 Thames contends that publication of the video of the

Interrogation invited the jury to speculate about his criminal history

20
because of his attire. (For purposes of this analysis, we assume the

jury believed Thames was wearing a prison uniform during the

Interrogation, although the People contest this factual issue. The

video showed him wearing green scrubs.) Thames asserts that this

possible speculation denied him the presumption of innocence

afforded to criminal defendants. We disagree.

¶ 47 More importantly, Thames has not alerted us to, nor are we

aware of, any Colorado case holding that a court violates the

presumption of innocence by allowing the jury to view a video

showing the defendant attired in prison garb. The presumption of

innocence is undermined only “when the defendant is required to

appear before the jury in visible restraints or prison clothes.”

Knight, 167 P.3d at 153 (emphasis added).

¶ 48 Allowing the jury to see a defendant in prison clothing during

trial is problematic because

the constant reminder of the accused’s
condition implicit in such distinctive,
identifiable attire may affect a juror’s
judgment. The defendant’s clothing is so likely
to be a continuing influence throughout the
trial that, not unlike placing a jury in the
custody of deputy sheriffs who were also
witnesses for the prosecution, an unacceptable

21
risk is presented of impermissible factors
coming into play.

Williams, 425 U.S. at 504-05. “[E]very defendant is entitled to be

brought before the court with the appearance, dignity, and self-

respect of a free and innocent man, except as the necessary safety

and decorum of the court may otherwise require.” Eaddy v. People,

115 Colo. 488, 491-92, 174 P.2d 717, 718-19 (1946) (holding that a

defendant cannot be compelled to wear prison clothing “throughout

his trial”).

¶ 49 The risk of prejudicing the defendant due to his clothing is not

present when the jury is shown a video depicting the defendant in a

prison uniform. See Ritchie v. State, 875 N.E.2d 706, 718 (Ind.

2007) (explaining that “[t]he concerns with having a criminal

defendant appear in jail clothing or shackles in a courtroom

proceeding are not directly applicable” to a video of the defendant’s

police interview). As another court pointed out:

While it is easy to understand how viewing a
defendant in handcuffs and jail clothing during
trial might risk diluting the presumption of
innocence, the same cannot be said about
exposure to a video showing the defendant in
jail clothing and handcuffs during an interview
prior to trial. . . . [M]ost jurors would not be
surprised by the fact that a defendant was

22
handcuffed and wearing jail clothing while in
jail prior to trial.

Bramlett v. State, 422 P.3d 788, 794 (Okla. Crim. App. 2018).

¶ 50 Unlike the visual impact of a defendant’s attire throughout a

trial, the clothing shown in a video lasting one hour and fourteen

minutes will not be a “constant reminder” of the defendant’s

condition or create a prejudicial, continuing influence in jurors’

minds. Nelson v. Cain, No. CIV. A. 13-4998, 2014 WL 2859147, at

*18 (E.D. La. June 23, 2014); see Thames, ¶ 3, 344 P.3d at 893-94

(noting that Thames’s interrogation lasted one hour and fourteen

minutes).

¶ 51 Thames does not contend that the trial court required him to

appear in the courtroom in visible restraints or prison clothes.

Rather, in the video, he is not restrained, is not handcuffed, and is

depicted seated in what appears to be a conference room with

pictures on the wall. Under these circumstances, Thames was not

deprived of his right to have the jury presume him innocent.

Knight, 167 P.3d at 153.

¶ 52 To the extent Thames argues that our decision should be

different because the prosecution modified the video of the

23
Interrogation to blur his prison identification badge and thereby

improperly highlighted his incarceration, we are not persuaded.

Even if the blurred badge drew the jurors’ attention to Thames’s

prison clothing, the trial court did not require him to appear in the

courtroom in a prison uniform. Id. Without this element, the

presumption of innocence remained intact. Id.

¶ 53 Thus, we conclude that the trial court did not violate Thames’s

right to be presumed innocent when it allowed the jury to view the

video of the Interrogation.

V. The Trial Court’s Refusal to Admit Evidence of the Results Was
Harmless

¶ 54 Thames next contends that the trial court violated his right to

present a defense by refusing to admit the Results. We need not

decide whether the court erred in this regard because we conclude

that any error in the trial court’s refusal to admit this evidence does

not require reversal.

A. Testimony About the Results

¶ 55 The prosecution filed a pretrial motion pursuant to section

16-3-309(5), C.R.S. 2018, to require in-person testimony to lay the

foundation for admission of any laboratory reports on which

24
Thames might rely at trial. Yvonne Woods, a Colorado Bureau of

Investigation analyst, testified on cross-examination that she had

examined the Results, which a company called GeneScreen had

prepared years before, when she had conducted her own analysis of

the DNA evidence. She testified that the Results indicated “there

could be some blood from J.T.” on Dewey’s shirt. She said that she

had performed her own DNA testing on different sections of the

shirt.

¶ 56 Defense counsel then moved to admit the Results. The

prosecutor objected, arguing that Woods had not conducted the

tests that produced the Results, as required under section

16-3-309(5). The court ruled that, pursuant to the statute, the

Results were inadmissible without the testimony of the analyst who

had performed the underlying tests. Defense counsel filed a motion

for a continuance to locate the analyst, which the trial court denied.

¶ 57 Defense counsel then attempted to admit the Results through

the testimony of the detective who had arrested Dewey. The trial

court again ruled the Results inadmissible under section

16-3-309(5).

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B. Standard of Review

¶ 58 We review a trial court’s admission of testimony for an abuse

of discretion. Ibarra, 849 P.2d at 38. A trial court abuses its

discretion if its decision “was manifestly arbitrary, unreasonable, or

unfair.” Id.

¶ 59 An erroneous evidentiary ruling may constitute constitutional

error if it deprives a defendant of, among other things, his right to

present a defense. People v. Beilke, 232 P.3d 146, 149 (Colo. App.

2009). A defendant’s right to present a defense, however, is violated

“only where the defendant was denied virtually his only means of

effectively testing significant prosecution evidence.” Krutsinger v.

People, 219 P.3d 1054, 1062 (Colo. 2009). Thus, when an

evidentiary limitation does not deprive a defendant of his sole

means of testing the prosecution’s evidence, reversal is required

only if any error substantially influenced the verdict or affected the

fairness of the trial. Id. at 1064.

C. Law Governing the Admission of Laboratory Results

¶ 60 Evidence rules that “infring[e] upon a weighty interest of the

accused” and are “‘arbitrary’ or ‘disproportionate to the purposes

they are designed to serve’” may violate a defendant’s constitutional

26
rights. Holmes, 547 U.S. at 324 (citation omitted). However, the

Constitution requires only that the accused be permitted to

introduce all relevant and admissible evidence. People v. Harris, 43

P.3d 221, 227 (Colo. 2002).

¶ 61 Colorado law limits the admissibility of laboratory results in

certain circumstances. To permit the admission of laboratory

results, a party can require the in-person testimony of the

individual who conducted the tests that produced the results.

§ 16-3-309(5). (The statute expressly applies only to persons who

testify “on behalf of the state.” Id. But we decide this issue on

grounds other than the trial court’s erroneous application of the

statute to a witness who testified on behalf of the defense.)

D. Any Error Was Harmless

¶ 62 Thames raises several arguments regarding the Results. But

we need only address his contention that, by refusing to admit the

Results, the trial court deprived him of a meaningful opportunity to

present a defense and to confront witnesses against him. We

conclude that any error was harmless.

¶ 63 The trial court’s decision not to admit the Results did not

substantially influence the verdict or affect the fairness of the

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proceedings. The jury was shown several pieces of DNA evidence

that linked Thames to the crime scene. Those test results placed

Thames’s DNA in locations where no other suspect’s DNA was

detected. Woods testified that Thames’s DNA was found on a

blanket in J.T.’s apartment, the pieces of soap inserted in J.T.’s

vagina, and the leash used to strangle J.T., as well as underneath

J.T.’s fingernails.

¶ 64 Even though Woods did not testify at length about the Results,

she did say it was possible that J.T.’s blood was on Dewey’s shirt.

Further, the trial court did not prevent defense counsel from

arguing in closing that J.T.’s blood was found on Dewey’s shirt.

¶ 65 During closing argument, defense counsel referred to the

Results several times. Defense counsel argued that “J.T.’s blood

was on the shirt back in 1996” and that Woods had tested different

areas of the shirt when she conducted her analysis years later.

Counsel further argued that, even though “the type of testing they

did back then wasn’t as advanced . . . as it is now,” no witness had

challenged the accuracy of the Results. Defense counsel also

asserted “[t]here is not a concern that GeneScreen got it wrong back

in 1996. Not a legitimate one.” Counsel concluded this argument

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by stating, “So, J.T.’s blood was on the shirt in 1996. Just because

they tested new areas of the shirt that didn’t have her blood spatter

on it, does not mean that GeneScreen was wrong in 1996. That is

faulty logic.”

¶ 66 Based on this record, we conclude that the trial court’s

decision not to admit the Results was harmless.

VI. The Alleged Errors Do Not Amount to Cumulative Error

¶ 67 Thames further contends that, even if each of the above

alleged errors does not separately require reversal, he was deprived

of a fair trial because of the errors in the aggregate. We disagree.

¶ 68 To decide this issue, we must evaluate whether “[n]umerous

formal irregularities . . . in the aggregate show the absence of a fair

trial.” Howard-Walker v. People, 2019 CO 69, ¶ 24, ___ P.3d ___,

___ (quoting Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443, 446

(1962)). “A conviction will not be reversed if the cumulative effect of

any errors did not substantially prejudice the defendant’s right to a

fair trial.” People v. Whitman, 205 P.3d 371, 387 (Colo. App. 2007)

(citing People v. Roy, 723 P.2d 1345, 1349 (Colo. 1986)). Individual

rulings that adversely affect a party, if not determined to be

erroneous, cannot serve as the basis for reversal under a

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cumulative error analysis. People v. Clark, 214 P.3d 531, 543 (Colo.

App. 2009), aff’d on other grounds, 232 P.3d 1287 (Colo. 2010).

¶ 69 As noted above, we have found no error in the trial court’s

decision to refuse to admit evidence of Dewey’s conviction, the

prosecutor’s comments during closing argument, or the admission

of the video of the Interrogation. We assume, without deciding, that

the refusal to admit the Results was error. Even if it was

erroneous, however, Thames still received a fair trial because “[t]he

doctrine of cumulative error requires that numerous errors be

committed . . . .” People v. Rivers, 727 P.2d 394, 401 (Colo. App.

1986) (emphasis added). Even assuming that the trial court erred

once, a single error is insufficient to reverse under the cumulative

error standard. Id. Accordingly, we conclude there is no basis for

reversal on grounds of cumulative error.

VII. Although Imposition of the Surcharges Did Not Violate
Thames’s Double Jeopardy Rights, He Is Entitled to Argue He
Should Not Be Required to Pay Them

¶ 70 Thames contests the Surcharges, which the trial court

imposed after sentencing: (1) a sex offender surcharge; (2) a special

advocate surcharge; (3) a genetic testing surcharge; and (4) court

costs. He contends that the imposition of the Surcharges following

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his initial sentencing violated his double jeopardy rights. He

further contends that he was wrongfully deprived of the opportunity

to seek a waiver of the Surcharges based on his indigency or

inability to pay. While we disagree that the trial court violated

Thames’s double jeopardy rights, we remand to the trial court to

allow Thames to request a waiver of the Surcharges.

A. Standard of Review and Law Governing Double Jeopardy
When a Court Corrects an Illegal Sentence

¶ 71 The alleged violation of a defendant’s double jeopardy rights is

a legal question we review de novo. People v. Tillery, 231 P.3d 36,

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

(Colo. 2011). The Double Jeopardy Clauses of the United States

and Colorado Constitutions protect a defendant from being twice

punished for the same offense. U.S. Const. amends. V, XIV; Colo.

Const. art. II, § 18. A court violates a defendant’s double jeopardy

rights by “increasing a lawful sentence after it has been imposed

and the defendant has begun serving it” because the increased

sentence may, in certain circumstances, constitute multiple

punishments for the same offense. People v. McQuarrie, 66 P.3d

181, 182 (Colo. App. 2002).

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¶ 72 An illegal sentence does not implicate double jeopardy,

however. Such a sentence “may be corrected at any time by a

sentencing court without violating a defendant’s rights against

double jeopardy.” People v. Smith, 121 P.3d 243, 251 (Colo. App.

2005); see also Crim. P. 35(a) (“The court may correct a sentence

that was not authorized by law or that was imposed without

jurisdiction at any time . . . .”); Bozza v. United States, 330 U.S.

160, 166-67 (1947) (holding that a sentence may be increased

without implicating double jeopardy when the original sentence did

not conform to a statutory requirement). We review the legality of a

sentence de novo. People v. Bassford, 2014 COA 15, ¶ 20, 343 P.3d

1003, 1006.

B. Imposition of the Surcharges to Correct an Illegal Sentence
Does Not Violate Thames’s Rights Against Double Jeopardy

¶ 73 All four of the Surcharges are mandatory. See

§ 13-32-105(1)(a)-(b), C.R.S. 2018 (“[T]here shall be charged against

the defendant a total docket fee of thirty [five] dollars, which shall

be payable upon conviction of the defendant.”); § 18-21-103(1),

C.R.S. 2018 (“[E]ach person who is convicted of a sex offense . . .

shall be required to pay a surcharge . . . .”); § 24-4.2-104(1)(a)(II)(A),

32
C.R.S. 2018 (“[A] [special advocate] surcharge of one thousand three

hundred dollars shall be levied on each criminal action resulting in

a conviction . . . .”); § 24-33.5-415.6(3)(a), C.R.S. 2018 (“A cost of

two dollars and fifty cents is hereby levied on each criminal action

resulting in a conviction . . . for a felony . . . .”); see also People v.

Hyde, 2017 CO 24, ¶ 28, 393 P.3d 962, 969 (“The legislature’s use

of the word ‘shall’ in a statute generally indicates its intent for the

term to be mandatory.”).

¶ 74 A court must therefore impose the Surcharges unless it finds

the defendant is entitled to a waiver.

¶ 75 Initially, we note that the special advocate surcharge is akin to

a civil sanction and is not punitive. See McQuarrie, 66 P.3d at 182-

83 (referring to the surcharge imposed by this statute as the

“victims and witnesses surcharge”). Because this surcharge is not

punitive, it does not implicate double jeopardy protections. Id.

¶ 76 Thames’s original sentence was contrary to statute, and

therefore illegal, as the trial court did not include the Surcharges in

the sentence. People v. Yeadon, 2018 COA 104, ¶ 51, ___ P.3d ___,

___ (cert. granted Mar. 25, 2019). Thames’s double jeopardy rights

were therefore not implicated through the imposition of the

33
Surcharges. Smith, 121 P.3d at 251 (correcting an illegal sentence

does not violate a defendant’s right against double jeopardy). For

this reason, the trial court must amend the mittimus to address the

Surcharges (either by imposing them or waiving them after

considering Thames’s arguments that he is not required to pay

them) and thereby correct his illegal sentence. Yeadon, ¶ 51, ___

P.3d at ___.

C. The Trial Court Must Give Thames the Opportunity to Prove
He Is Indigent or Otherwise Financially Unable to Pay the
Surcharges

¶ 77 By statute, each of the Surcharges may be waived based on

the defendant’s financial status. See § 18-21-103(4) (“The court

may waive all or any portion of the surcharge required by this

section if the court finds that a person convicted of a sex offense is

indigent or financially unable to pay . . . .”); § 24-4.2-104(1)(c) (“The

[special advocate] surcharge levied by this section may not be

suspended or waived by the court unless the court determines that

the defendant is indigent.”); § 24-33.5-415.6(9) (“The court may

waive a cost or surcharge levied pursuant to [section 24-33.5-415.6]

if the court determines the defendant is indigent.”); see also Chief

Justice Directive 85-31, Directive Concerning the Assessment and

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

Criminal, Juvenile, Traffic and Misdemeanor Cases (amended Aug.

2011) (“If the statute or rule is silent as to the court’s authority for

waiver or suspension of the specific fine, fee, surcharge, or cost

being considered, this [Chief Justice Directive] shall provide

authority for the court to waive or suspend the imposition or

collection of the amount only in those instances where the court

finds the Defendant or Respondent has no ability to pay the

assessed amount.”).

¶ 78 Despite the statutory waiver language, the trial court imposed

the Surcharges on Thames without giving him an opportunity to

prove he falls within one or more of the exemptions. Thus, we

remand to the trial court to afford Thames an opportunity to prove

he is entitled to a waiver. Yeadon, ¶ 52, ___ P.3d at ___.

VIII. Conclusion

¶ 79 The judgment is affirmed. The case is remanded to the trial

court with instructions to provide Thames with the opportunity to

prove he is entitled to a waiver of one or more of the Surcharges.

JUDGE ROMÁN and JUDGE J. JONES concur.

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