Peo v. Boyles

23CA1246 Peo v Boyles 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1246
Chaffee County District Court No. 19CR19
Honorable Patrick W. Murphy, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brett D. Boyles,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE SCHOCK
Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 27, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Keyonyu X O’Connell, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Brett D. Boyles, appeals his convictions for second

degree murder and first degree assault and his ninety-six-year

habitual criminal sentence. We affirm the judgment.

I. Background

¶2 While incarcerated, Boyles got into a fight with another inmate

that ended with the other inmate dead. Daniel Egan, who occupied

the neighboring cell, witnessed the beating and testified at trial.

¶3 According to Egan, the altercation began as a fistfight between

Boyles and the victim over something Boyles had said. Eventually,

Boyles knocked the victim unconscious, at which point Boyles

began kneeing him repeatedly and banging his head against a toilet.

¶4 Boyles’s cell mate, Chad Merrill, asked Boyles if he was trying

to kill the victim, and Boyles said he was not. But Merrill said the

victim was “too far gone” and suggested that Boyles let Merrill kill

him. After some discussion, Boyles told Merrill to “get the knife.”

¶5 They put up a sheet as a curtain to conceal the victim, and the

victim was stabbed to death. There was conflicting testimony as to

which side of the curtain Boyles was on when the stabbing

occurred. Egan testified that Boyles was “in front of the sheet” —

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opposite of the victim — while another inmate witness testified that

Boyles was “behind the sheet” with Merrill and the victim.

¶6 Boyles was charged with several counts, including first and

second degree murder and first and second degree assault. He was

convicted by a jury of second degree murder, first degree assault,

and second degree assault. The assault convictions merged.

¶7 Boyles was adjudicated a habitual criminal based on prior

convictions for first degree trespass of a dwelling, false information

to a pawnbroker, and aggravated robbery. The district court

sentenced him to concurrent prison terms of ninety-six years for

second degree murder and sixty-four years for first degree assault.

II. Confrontation Right

¶8 Boyles contends that the district court violated his

constitutional confrontation right by limiting his cross-examination

of Egan about Egan’s pending criminal charges. We disagree.

A. Additional Background

¶9 In his opening statement, defense counsel explained that

Egan, the prosecution’s “star witness,” had an extensive criminal

history and had been charged with murder in this case. He

asserted that Egan had received a very favorable plea deal in

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exchange for testifying and that after he was released, he was

charged with two more felonies that were still pending in the same

county, “giv[ing] him more incentive to keep working his angle.”

¶ 10 At that point, the prosecution objected, arguing that any

reference to pending cases was inadmissible under CRE 404(b).

Defense counsel countered that a defendant is entitled to cross-

examine a witness on pending charges in the same jurisdiction as

part of their constitutional right to confrontation. The court

reserved ruling on the admissibility of the charges, but it allowed

defense counsel to refer to the charges in opening statement.

¶ 11 The court returned to the issue before Egan testified. Defense

counsel noted that Egan had three pending cases: one for

misdemeanor menacing and two for aggravated motor vehicle theft.1

He explained that he did not intend to ask about the facts of the

menacing case but intended to address the existence of all three

cases and the underlying facts of the two motor vehicle theft cases.

¶ 12 The court concluded that, under the Sixth Amendment, Boyles

could cross-examine Egan about the existence of all three pending

1 Egan was also charged with misdemeanor theft in one of the

aggravated motor vehicle theft cases.

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cases because of the possibility that his testimony might be

influenced by those cases. The court also ruled that Boyles could

ask Egan about the underlying facts of the theft cases under CRE

608(b) because they were probative of Egan’s truthfulness. It

barred any inquiry into the underlying facts of the menacing case.

¶ 13 The court then turned to what would happen if Egan invoked

his Fifth Amendment right against self-incrimination. Defense

counsel argued that if Egan intended to exercise his Fifth

Amendment right, the prosecution should not be permitted to call

him as a witness. The court denied that request, noting that the

Fifth Amendment applied to “only a sliver of [Egan’s] testimony.”

But the court ruled that if Egan invoked the Fifth Amendment in

response to questions about the pending theft cases, Boyles would

be permitted to introduce the charging documents to explain the

facts of those cases. The prosecution agreed to that procedure.

¶ 14 To avoid Egan needing to invoke the Fifth Amendment in front

of the jury, the court allowed defense counsel to ask him outside

the presence of the jury if he intended to invoke the Fifth

Amendment. Defense counsel agreed that was the “best solution.”

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Egan confirmed that he would invoke the Fifth Amendment in

response to any questions about the facts of his pending cases.

¶ 15 Egan testified on direct examination that he had been charged

with aggravated motor vehicle theft in two cases but was not serving

a sentence in either case. On cross-examination, defense counsel

asked Egan about the misdemeanor menacing case, and Egan

testified that it had been dismissed. Counsel then confirmed again

that Egan had two pending felony cases for motor vehicle theft.

After asserting that Egan faced a sentence of up to twelve years in

each case, counsel got Egan to acknowledge that the same district

attorney who was prosecuting the case against Boyles could

recommend the reduction or dismissal of Egan’s pending charges.

When Egan was done testifying, defense counsel introduced the

redacted arrest affidavits from the two motor vehicle theft cases.

B. Applicable Law and Standard of Review

¶ 16 Criminal defendants have a constitutional right to confront the

witnesses against them. U.S. Const. amend. VI; Colo. Const. art. II,

§ 16. This right is “primarily secured through cross-examination.”

Margerum v. People, 2019 CO 100, ¶ 10. Impeaching a witness’s

credibility is an essential component of that right. Id. at ¶ 11. A

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court therefore may not excessively limit a defendant’s cross-

examination of a witness regarding the witness’s credibility,

especially as to the witness’s “bias, prejudice, or motive for

testifying.” Merritt v. People, 842 P.2d 162, 167 (Colo. 1992).

¶ 17 A witness’s pending charge may be relevant to the witness’s

motive for testifying when the testimony might be influenced by a

hope or expectation of leniency with respect to that charge. Kinney

v. People, 187 P.3d 548, 559 (Colo. 2008). And when the pending

charge is in the same district as the case in which the witness is

testifying, there is always the potential for such influence. See

People v. Reynolds-Wynn, 2024 COA 33, ¶¶ 34-36. Thus, “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.” Id. at ¶ 36.

¶ 18 We review de novo whether there was a violation of the

Confrontation Clause. Id. at ¶ 31. But even where the

Confrontation Clause is implicated, the district court retains broad

discretion to impose reasonable limits on cross-examination. Id. at

¶ 25. If such limits do not violate a defendant’s constitutional

rights, we review them for an abuse of discretion. Id. at ¶ 31.

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C. Analysis

¶ 19 Boyles asserts that the district court erroneously limited his

cross-examination of Egan regarding his pending charges. But the

court did not limit Boyles’s cross-examination. Consistent with

Reynolds-Wynn, the court allowed Boyles to question Egan about

the existence of all three pending charges and how those charges

might have influenced his testimony. See id. at ¶ 36. And Boyles

did so, explicitly pointing out that the same district attorney who

was prosecuting the case against Boyles could recommend the

reduction or dismissal of the pending charges. The district court

also allowed Boyles to ask Egan about the underlying facts of the

two pending motor vehicle theft charges. See People v. Segovia, 196

P.3d 1126, 1132 (Colo. 2008) (holding that cross-examination about

underlying circumstances of prior act of shoplifting was admissible

under CRE 608(b) because “theft is probative of truthfulness”).

¶ 20 The only cross-examination the court did not allow was on the

underlying facts of the menacing case. But Boyles told the court he

did not intend to ask about the facts of that case anyway. And in

any event, the underlying facts of the menacing case were not

relevant to either Egan’s character for truthfulness or his motive for

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testifying. See People v. Russom, 107 P.3d 986, 992 (Colo. App.

2004) (holding that “[t]he factual details of the pending cases

against [the] witness were not relevant to the witness’s biases,

prejudices, or motives for testifying against [the] defendant”).

¶ 21 Boyles’s real complaint is not with any restrictions on his

cross-examination but with Egan’s invocation of the Fifth

Amendment in response to questions about the facts underlying the

theft charges. But the court could not compel Egan to waive his

Fifth Amendment right not to incriminate himself. See People v.

Smith, 275 P.3d 715, 720 (Colo. App. 2011); see also People v. Coit,

50 P.3d 936, 938 (Colo. App. 2002) (“No one can force [a witness] to

give up [the Fifth Amendment] privilege.”). Rather, when a

defendant’s Sixth Amendment rights “collide with a witness’s Fifth

Amendment rights,” the witness’s Fifth Amendment right must take

priority.2 Smith, 275 P.3d at 720; see also People v. Clark, 2015

2 Boyles does not argue on appeal, as he did in the district court,

that the court should have precluded Egan from testifying
altogether. Cf. People v. Ray, 109 P.3d 996, 1002 (Colo. App. 2004)
(“The decision whether to strike a witness’s testimony based on his
or her invocation of the Fifth Amendment privilege should focus on
‘whether the sought answer was closely related to the commission
of the crime, or involved collateral or cumulative testimony
concerning credibility.’”) (citation omitted).

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COA 44, ¶ 81. Because Boyles does not dispute that Egan properly

invoked the Fifth Amendment with respect to the facts underlying

the theft charges, the district court could not require Egan to

answer questions about those facts. See Smith, 275 P.3d at 721.

¶ 22 Moreover, the district court protected Boyles’s confrontation

right to the greatest extent possible without infringing on Egan’s

Fifth Amendment right by allowing Boyles to introduce the arrest

affidavits from the theft cases to prove the underlying facts. As

Boyles’s counsel acknowledged in the district court, that was the

“next best thing” to cross-examination and allowed Boyles to

challenge Egan’s character for truthfulness based on those alleged

facts.3 Indeed, Boyles’s counsel specifically referred to those

affidavits in closing as evidence of Egan’s “untruthful behavior.”

¶ 23 Thus, the district court did not violate Boyles’s right of

confrontation or unreasonably limit his cross-examination of Egan.

3 We note that CRE 608(b) does not allow specific instances of

conduct to be proved by extrinsic evidence for the purpose of
attacking a witness’s character for truthfulness. See People v.
Thomas, 2014 COA 64, ¶ 42. But the prosecution agreed to the
admission of the arrest affidavits, and their admission — which
benefited Boyles — is not at issue in this appeal.

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III. Sentence Proportionality

¶ 24 Boyles also argues that the district court erred by treating his

predicate first degree trespass conviction as grave and serious for

purposes of its proportionality review of his ninety-six-year habitual

criminal sentence for second degree murder. Because we agree

with the district court that Boyles’s sentence does not raise an

inference of gross disproportionality, we discern no reversible error.

A. Additional Background

¶ 25 As noted above, Boyles was adjudicated a habitual criminal

based on three prior felony convictions: a 2005 conviction for first

degree trespass of a dwelling, a 2005 conviction for giving false

information to a pawnbroker, and a 2010 conviction for aggravated

robbery with a deadly weapon. The habitual criminal adjudication

increased Boyles’s second degree murder sentence from a range of

sixteen to forty-eight years to a mandatory ninety-six years.

¶ 26 Boyles requested a proportionality review of his sentence. He

conceded that the predicate aggravated robbery conviction and the

triggering second degree murder conviction were grave and serious.

But he argued that his other two predicate convictions were not.

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¶ 27 The prosecution conceded that the conviction for false

information to a pawnbroker was not grave and serious. But it

argued that the first degree trespass conviction was. According to

the arrest report, that offense — which occurred when Boyles was

eighteen years old — involved Boyles’s theft of items from a home.

¶ 28 The district court concluded that Boyles’s sentence did not

raise an inference of gross disproportionality. It agreed with the

parties that aggravated robbery was a grave and serious offense and

giving false information to a pawnbroker was not. With respect to

the trespass conviction, the court explained:

First degree criminal trespass can be a lot of
things, including entering somebody’s car to
grab some change up to being on somebody’s
property illegally.

Here, if we’re talking about spectrum of
seriousness in first degree criminal trespass
cases, this is near the top. The facts behind
this were a burglary of another person’s home,
which as far as property crimes go is about as
serious as it gets. So I think under People v.
Green[, 2012 COA 68M,] I can find, and I do
find, that this is a grave and serious offense
being in somebody else’s home, stealing their
things. And apparently the people were home
at the time, and only became aware of the theft
later.

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That does harm the victims of the crime,
makes them feel unsafe in their home. It was
a completed act. Mr. Boyles was the principal,
and it would have required — I believe the
mental state would be knowingly. So this
wasn’t an accident.

¶ 29 The court then explained that the severity of the triggering

murder offense was what “moves the needle past the required line.”

It noted that “there’s no crime with a greater magnitude than

murder.” It then pointed to several aggravating facts, including

(1) the duration of the assault and murder; (2) the “savage way [the

victim] was killed”; (3) the “somewhat celebratory scene once [the

victim] was brought out onto the tier”; (4) the “indication of

planning”; and (5) the disposal of the knife used in the murder.

¶ 30 Considering all three predicate offenses and the triggering

offense together, the court concluded that Boyles’s sentence was

not grossly disproportionate “because somebody is dead.”

B. Applicable Law and Standard of Review

¶ 31 Both the United States and Colorado Constitutions prohibit

“grossly disproportionate” sentences. Wells-Yates v. People, 2019

CO 90M, ¶¶ 5, 10 (Wells-Yates I). When a defendant challenges the

proportionality of a sentence, the court must conduct an

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abbreviated proportionality review. Id. at ¶¶ 7, 11. In conducting

that review, the court must consider the gravity or seriousness of

the offense and the harshness of the penalty to determine whether

the sentence gives rise to an inference of gross disproportionality.

Id. at ¶¶ 7, 8, 11. If it does not, the sentence is valid, and an

extended proportionality review is not required. Id. at ¶ 15.

¶ 32 For a habitual criminal sentence, the court must consider the

gravity or seriousness of all the offenses in question and the

harshness of the sentence to determine whether “the triggering

offense and predicate offenses, considered together, are so lacking

in gravity or seriousness as to suggest that the sentence is grossly

disproportionate.” Id. at ¶ 24. Although habitual criminal

sentences present unique proportionality concerns, an abbreviated

proportionality review will “almost always yield a finding that the

sentence is not constitutionally disproportionate.” Id. at ¶¶ 20, 21.

¶ 33 Gross disproportionality is a question of law that we review de

novo, as are the subsidiary issues of the gravity or seriousness of

the offense and the harshness of the penalty. People v. Wells-Yates,

2023 COA 120, ¶ 17 (Wells-Yates II). We defer to the district court’s

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factual findings concerning the facts and circumstances

surrounding the offense if they are supported by the record. Id.

C. Analysis

¶ 34 Boyles challenges only the district court’s assessment of the

seriousness of his first degree trespass offense. That question is

not a binary choice between “serious” and “not serious.” Id. at ¶ 36.

Instead, we must consider how serious the offense is. Id. Treating

this inquiry as one of degree, we agree with the district court that

Boyles’s first degree trespass — though surely not the most serious

offense — was somewhat more serious than its label might suggest.

¶ 35 The district court found that the first degree trespass involved

the burglary of another person’s home. Boyles was knowingly “in

somebody else’s home, stealing their things” while the residents

were home. As the district court pointed out, such a crime causes

substantial harm to the victims by making them feel unsafe in their

own home. See id. at ¶ 51 (noting that “even the burglary of an

unoccupied home . . . causes substantial harm to the victim and

reflects a high degree of culpability on the part of the offender”).

Moreover, Boyles was the principal to the crime and the crime was

completed, with the victims “only [becoming] aware of the theft

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later.” See Wells-Yates I, ¶ 12 (listing factors relevant to the gravity

or seriousness of an offense). Taking into account these “facts and

circumstances of the particular crime committed,” id. at ¶ 71, we

agree with the district court that Boyles’s first degree trespass was

more serious than other versions of that crime. See Wells-Yates II,

¶ 37 (considering “relative gravity or seriousness” of offense); cf.

Green, ¶¶ 53-57 (concluding that first degree trespass was grave or

serious where the defendant broke into the victim’s home in the

early morning hours, encountered the victim naked, and refused to

leave, “caus[ing] the victim considerable fright and upset”).

¶ 36 But regardless of the gravity or seriousness of the trespass

offense, Boyles’s ninety-six-year sentence does not raise an

inference of gross disproportionality when the triggering offense and

all three predicate offenses are considered together. See Wells-

Yates II, ¶ 37; see also People v. Loris, 2018 COA 101, ¶ 29 (“It is

not necessary for each offense to be grave or serious for a court to

conclude that a sentence is not grossly disproportionate.”).

¶ 37 Not only is murder the paradigmatic per se grave and serious

offense, see People v. Crawley, 2024 COA 49, ¶ 22, but the murder

in this case was particularly so. Boyles brutally beat the victim

15
unconscious before working with Merrill to hide the victim behind a

sheet and repeatedly stab him to death. In addition, one of Boyles’s

predicate offenses — an aggravated robbery in which he cut the

victim with a knife — was also per se grave or serious. See Wells-

Yates I, ¶ 13. Even if Boyles’s other two predicate offenses were not

grave or serious, that would not make his sentence so extreme as to

be grossly disproportionate to his crime. See id. at ¶ 5 (“‘The Eighth

Amendment does not require strict proportionality between crime

and sentence’; instead, ‘it forbids only extreme sentences that are

“grossly disproportionate” to the crime.’”) (citation omitted).

¶ 38 Boyles’s age at the time of his predicate first degree trespass

offense (he was eighteen years old) does not change our conclusion.

Although Boyles’s youth at the time of the trespass perhaps lessens

his culpability for that offense, his sentence in this case was not

imposed for the trespass. It was imposed for the murder. See

People v. Porter, 2019 COA 73, ¶ 18. Boyles’s age at the time of one

of his predicate felonies does not affect the validity of his habitual

criminal sentence under the Eighth Amendment. See id. at ¶ 19.

IV. Disposition

¶ 39 The judgment is affirmed.

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JUDGE FREYRE and JUDGE SULLIVAN concur.

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