People v. Hebert

COLORADO COURT OF APPEALS 2016COA126

Court of Appeals No. 14CA0401
Boulder County District Court No. 13CR854
Honorable Patrick D. Butler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michelle Ann Hebert,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE MÁRQUEZ*
Lichtenstein and Miller, JJ., concur

Announced September 8, 2016

Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶1 Defendant, Michelle Ann Hebert, appeals the judgment of

conviction entered on jury verdicts finding her guilty of theft from

an at-risk adult and several tax offenses. Following our limited

remand order directing the district court to make further findings

about whether Hebert was entitled to appointed counsel at the time

of trial, the district court made those findings. We now address all

of Hebert’s appellate arguments and affirm her conviction.

I. Background

¶2 According to the prosecution’s evidence, Hebert convinced the

victim, an elderly man, to give her many loans totaling several

hundred thousand dollars and failed to pay back the loans. The

victim contacted the police, and the People initially charged Hebert

with theft from an at-risk adult.

¶3 Hebert was appointed counsel from the Office of the Public

Defender. The same day that appointed counsel entered his

appearance, the People moved to depose the victim pursuant to

section 18-6.5-103.5, C.R.S. 2015 (allowing for depositions of

at-risk adults in criminal cases). Because the victim’s health was

failing, the People requested that he be deposed from his home via

two-way video conference with both parties questioning him live

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from the courtroom. Hebert’s appointed counsel objected, arguing,

among other things, that (1) allowing the deposition to occur via

two-way video conference would violate Hebert’s Sixth Amendment

right to confront the victim face-to-face and (2) granting the motion

would render his assistance to Hebert ineffective because he would

not have enough time to prepare an effective cross-examination of

the victim. The district court held a hearing and granted the

motion, but ordered that the deposition not occur for another five

weeks to give Hebert’s appointed counsel time to prepare.

¶4 Six weeks after the district court granted the motion, the

victim was placed under oath and deposed at home via two-way

video conference, with both sides asking him questions from the

courtroom. Hebert was also present in the courtroom. The

deposition was recorded, and, because the victim died before trial,

the video recording was admitted at trial.

¶5 After the deposition but before trial, Hebert retained private

counsel to represent her. However, shortly thereafter, the People

charged Hebert with the additional tax-related offenses. Hebert’s

counsel then moved to withdraw, and the court granted the motion.

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Hebert requested appointed counsel, but the public defender’s office

determined that she was ineligible for appointed counsel.

¶6 Hebert represented herself at trial. The jury found her guilty

of all of the charged counts, and the district court entered a

judgment of conviction and sentenced her accordingly. She

appealed, arguing that the district court erred by (1) failing to make

its own findings about whether she was eligible for appointed

counsel after her private counsel withdrew and (2) admitting the

recording of the victim’s deposition at trial. As noted, we remanded

the case to the district court with directions to make its own

findings about Hebert’s eligibility for substitute counsel, and we

reserved addressing her argument about the deposition. Now that

the court has made the necessary findings, we address both issues

— Hebert’s eligibility for appointed counsel and the admission of the

victim’s deposition.

II. Hebert Was Ineligible for Appointed Counsel

¶7 Hebert argues that the district court erred by determining on

remand that she was ineligible for appointed counsel. We disagree.

¶8 We review the court’s decision for an abuse of discretion. See

People v. Schupper, 2014 COA 80M, ¶ 21.

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¶9 It is the defendant’s burden to prove indigency by a

preponderance of the evidence. Id. at ¶ 34. When determining

whether the defendant has met that burden, the district court

should consider the defendant’s complete financial situation,

including any secreted assets. Id. at ¶ 26.

¶ 10 On remand, Hebert submitted her public defender application

and her 2012 joint tax return. The district court reviewed Hebert’s

application for appointed counsel, dated November 2013, in which

she stated that she had no income, three dependents, ten dollars in

a savings account, $2500 in other assets, and was separating from

her husband. The district court also reviewed her 2012 tax return,

dated April 2013, which showed that Hebert and her husband filed

a joint return and reported their total income as $76,051. Finally,

the district court considered Hebert’s and her husband’s testimony

at sentencing, which took place in January 2014. At that time, the

district court asked Hebert’s husband how many times he and

Hebert had separated. He replied that they had never been

separated. Indeed, Hebert subsequently explained to the court that

the only reason that she had indicated on her application for

appointed counsel that she and her husband were separating was

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so that she would qualify for appointed counsel. Considering all of

this evidence, the district court determined that Hebert was

ineligible for appointed counsel at the time of her November 2013

application.

¶ 11 Hebert argues on appeal that the district court abused its

discretion by failing to credit her statement in her application that

she was separating from her husband. She argues that because

they were separating, she no longer had access to his income and

was, in fact, indigent.

¶ 12 But it is the district court that determines the probative effect

and weight of the evidence. Id. at ¶ 27. And in doing so here, the

district court determined that regardless of Hebert’s representations

in her application, Hebert’s and her husband’s testimony at

sentencing constituted evidence that they had never separated. On

this evidence, the district court determined that their combined

income of $76,051 rendered Hebert ineligible for appointed counsel.

We conclude that the district court’s findings were supported by the

evidence, and we therefore perceive no abuse of discretion in its

determination that Hebert was not indigent and did not qualify for

appointed counsel.

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III. Admission of Previously Recorded Two-Way Video Deposition

A. Fair Trial

¶ 13 Hebert contends she was denied the right to a fair trial when

the district court admitted the victim’s video deposition testimony

without adequate time for defense counsel to prepare for the

examination. We perceive no error in the court’s ruling.

¶ 14 In June 2013, Hebert’s counsel argued the People’s request to

depose the victim was premature, he had not been given the

opportunity to properly review discovery, and his preparation for

the deposition would be ineffective.

¶ 15 The court ordered that the hearing be delayed until August

2013 to give the defense sufficient time to prepare. The court

conducted the deposition via two-way video conference on August 8,

2013. Defendant was represented by counsel who cross-examined

the victim.

¶ 16 In our view, providing additional time to prepare was a proper

response to counsel’s concerns, and Hebert was not denied the

right to a fair trial.

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B. Confrontation Right

¶ 17 Hebert also argues that admitting the video recording of the

victim’s deposition violated her Sixth Amendment confrontation

right because she was unable to confront the victim face-to-face at

the deposition. She has asserted, in a perfunctory manner, a

violation of her confrontation right under the Colorado Constitution,

but has not developed any analysis or argument under the state

constitutional standard either before the district court or on appeal.

We will therefore not engage in an independent analysis of this

assertion. See People v. Hill, 228 P.3d 171, 176-77 (Colo. App.

2009) (declining to address conclusory assertion that defendant’s

confrontation right was violated). Instead, we review the Sixth

Amendment confrontation argument de novo, see People v. Merritt,

2014 COA 124, ¶ 25, and disagree with Hebert.

¶ 18 The Sixth Amendment provides all criminal defendants with

the right to confront witnesses who testify against them at trial.

U.S. Const. amend. VI. The combined effect of the elements of

confrontation — the physical presence of the witness, the testimony

being given under oath, the defendant’s opportunity to

cross-examine the witness, and the fact finder’s ability to observe

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the witness’s demeanor — ensures compliance with the Sixth

Amendment and that the admitted evidence is reliable. See

Maryland v. Craig, 497 U.S. 836, 846 (1990). Ordinarily, the

physical presence element of confrontation includes the right to a

face-to-face meeting with prosecution witnesses when they testify.

See id. at 844.

¶ 19 But the Supreme Court has made clear that a defendant’s

right to confront witnesses face-to-face is not absolute. Id. In

Craig, the Court addressed the constitutionality of receiving a child

victim’s testimony via live video from a separate location in which

the defendant was not present. Id. at 841-42. The Court explained

that the Sixth Amendment “reflects a preference for face-to-face

confrontation at trial . . . that must occasionally give way to

considerations of public policy and the necessities of the case.” Id.

at 849 (citations omitted). In these situations, the absence of a

face-to-face confrontation at trial does not violate a defendant’s

confrontation rights if the “denial of such confrontation is necessary

to further an important public policy and . . . the reliability of the

testimony is otherwise assured.” Id. at 850.

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¶ 20 The at-risk adult deposition statute provides that in “any case

in which a defendant is charged with a crime against an at-risk

adult . . . the prosecution may file a motion with the court at any

time prior to commencement of the trial, for an order that a

deposition be taken of the testimony of the victim . . . and that the

deposition be recorded and preserved on video tape.”

§ 18-6.5-103.5(1). If the court grants the request and the

deposition occurs, the court may admit the video at trial if “the

court finds that the victim . . . is medically unavailable or otherwise

unavailable within the meaning of rule 804(a) of the Colorado rules

of evidence.” § 18-6.5-103.5(4). Hebert does not allege that taking

or admitting the deposition of the victim here violated this statute.

¶ 21 We are aware of no Colorado appellate court opinion

addressing the circumstances under which admitting a video

recording of a deposition of an at-risk adult victim, conducted via a

two-way video conference, would violate a defendant’s confrontation

rights. However, other jurisdictions have examined live video

conference testimony for confrontation violations under the analysis

set out in Craig. See, e.g., Rivera v. State, 381 S.W.3d 710, 713

(Tex. App. 2012). And our supreme court has held that the

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confrontation concerns and analysis articulated in Craig apply

equally to live video testimony and previously recorded video

testimony. See Thomas v. People, 803 P.2d 144, 151 (Colo. 1990)

(addressing confrontation right implications of previously recorded

video testimony that was preserved pursuant to the statute allowing

videotape depositions of child sexual assault victims, section

18-3-413, C.R.S. 2015). Section 18-3-413 contains language

similar to that in the at-risk adult statute.

¶ 22 We therefore apply Craig and Thomas to the circumstances of

this case and conclude that admitting the video of the victim’s

deposition did not violate Hebert’s confrontation rights because (1)

the video conference procedure was necessary to protect the health

of the victim and (2) the procedure ensured the reliability of the

victim’s testimony.

¶ 23 Before ordering the deposition, the district court reviewed two

letters and an affidavit from the victim’s doctor detailing his medical

condition and the probable health effects of requiring him to testify

in court or at home with Hebert physically present. The doctor

wrote that the victim was currently in hospice care at home and his

survival was measured in months. The doctor also wrote that

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deposing the victim with Hebert physically present would cause a

rise in the victim’s blood pressure that, given his frail heart

condition, could be fatal. Based on this evidence, the district court

found that the victim was physically unavailable and a two-way

video conference deposition was necessary. Indeed, the victim’s

health was so frail that he died in the four months between the

deposition and trial. In light of this evidence, we agree with the

district court’s finding that conducting the deposition without

Hebert physically present was necessary to protect the victim’s

health.

¶ 24 To the extent that the reliability of the victim’s testimony might

be an issue, the victim gave his deposition testimony under oath

and was subjected to contemporaneous cross-examination by

Hebert’s counsel, and, because the video deposition was played at

trial, the jury was able observe the victim’s demeanor while

testifying. See Craig, 497 U.S. at 846. Moreover, when permitting

the deposition, the district court stated that it would ensure that

there would be nobody in the room with the victim who, out of the

view of the parties and the camera, could signal to him about how

to testify during the deposition. See Craig, 497 U.S. at 850; United

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States v. Abu Ali, 528 F.3d 210, 242 (4th Cir. 2008) (the defendant’s

confrontation rights were not violated by admission of previously

recorded video of two-way videoconference depositions of foreign

witnesses); see also Thomas, 803 P.2d at 151 (video of deposition of

child sexual assault victim was reliable and therefore admissible

when child was questioned (1) by one therapist approved by the

prosecution and one therapist approved by the defense, (2) under

oath, and (3) out of the defendant’s presence with the attorneys and

the defendant communicating with the therapists by passing them

notes).

¶ 25 We also note that the victim’s testimony was admissible under

the Supreme Court’s confrontation analysis in Crawford v.

Washington, 541 U.S. 36 (2004). In that case, the Court held that

testimonial hearsay did not violate the Confrontation Clause as long

as the declarant was unavailable and the defendant had a prior

opportunity for cross-examination. Id. at 68. This appears to be a

different confrontation standard than that articulated in Craig.

Another division of this court has recognized the potential conflict

between Craig and Crawford and has suggested that although the

two opinions are not incompatible, the Crawford standard applies

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to testimonial hearsay challenged under the federal confrontation

right. See People v. Phillips, 2012 COA 176, ¶¶ 53-54, 78. We need

not resolve any conflict that may exist between Craig’s and

Crawford’s application to testimonial hearsay because, in addition

to being admissible under Craig as discussed above, the victim’s

testimony also satisfied both of Crawford’s requirements: the victim

was deceased at the time of trial and Hebert had a full opportunity

to cross-examine him during the deposition.

¶ 26 We therefore conclude that admitting the two-way video

deposition did not violate Hebert’s Sixth Amendment confrontation

rights.

IV. Conclusion

¶ 27 The judgment of conviction is affirmed.

JUDGE LICHTENSTEIN and JUDGE MILLER concur.

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