People v. Lopez

COLORADO COURT OF APPEALS 2016COA179

Court of Appeals No. 13CA1600
Jefferson County District Court No. 12CR1974
Honorable Christie A. Bachmeyer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Corey Anthony Lopez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE BOORAS
Terry and Berger, JJ., concur

Announced December 15, 2016

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Audrey E. Bianco, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Corey Anthony Lopez, appeals the trial court’s

judgment of conviction entered on jury verdicts finding him guilty of

one count each of first degree murder — after deliberation;

attempted first degree murder — after deliberation; reckless

endangerment; and third degree assault. We affirm.

I. Background

¶2 In 2012, defendant’s girlfriend, R.B., was at a bar drinking

with her mother, brother, and a friend. At some point, defendant

joined them.

¶3 Later in the evening, the group left the bar and continued

drinking at R.B.’s friend’s home. After some additional drinking,

defendant told R.B. that he wanted to go home because he had to

get up early for work the next day. However, R.B. told defendant

she did not want to leave, and the two began arguing. Eventually,

R.B. left her friend’s house, got into her brother’s car, and asked

him to take her home. As defendant attempted to convince R.B. to

come home with him, R.B.’s friend intervened, asking defendant to

stop bothering R.B. At that point, defendant began arguing with

R.B.’s friend and, as the argument escalated, defendant became so

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angry that he punched out his car window. R.B. then exited her

brother’s vehicle and left the scene on foot.

¶4 The police responded to a noise complaint at R.B.’s friend’s

house soon thereafter. After the police left, R.B.’s mother and

brother headed home, and defendant joined them.

¶5 When the group arrived at the home, R.B. was asleep on the

couch. At approximately 5 a.m., defendant and R.B. traveled to

defendant’s apartment. Later that afternoon, defendant called 911

to report that R.B. was not breathing. When the police and

paramedics arrived, R.B. was dead.

¶6 In interviews with the police, defendant claimed that he and

R.B. had had consensual “make-up” sex, and, at some point, he

was behind R.B. with his arms draped over and around her

shoulders. He said that after they were done, he cuddled with R.B.

and went to sleep. In explaining why R.B. was fully clothed when

the police and paramedics arrived, he said that he and R.B. had

both worn their underwear during sex and that he did not want

anyone to see R.B. in her underwear.

¶7 As the police waited on R.B.’s autopsy reports, they were

contacted by defendant’s ex-girlfriend, S.E. S.E. told the police that

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based on her experience dating defendant, she believed defendant

may have strangled R.B. Her belief was based on an incident in

2008 when, according to S.E., defendant nearly strangled her to

death during an argument, only to be saved by a friend who had

forced her way into S.E. and defendant’s bedroom.

¶8 The autopsy report later showed that R.B. had died of manual

strangulation.

¶9 The district attorney subsequently charged defendant with

first degree murder — after deliberation as to R.B. and attempted

first degree murder — after deliberation as to S.E. At the end of

trial, at defendant’s request, the court also instructed the jury on

the lesser nonincluded offenses of reckless endangerment and third

degree assault as to S.E. The jury convicted defendant of (1) first

degree murder — after deliberation as to R.B.; (2) attempted first

degree murder — after deliberation as to S.E.; and (3) the lesser

nonincluded offenses.

II. Sequestration

¶ 10 Defendant first contends that the trial court erred when it

allowed R.B.’s mother and brother, who were witnesses for the

3
prosecution, to be present during testimony at defendant’s

preliminary hearing and trial. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 11 Decisions related to the sequestration of witnesses are

reviewed for an abuse of discretion. See People v. Cohn, 160 P.3d

336, 346 (Colo. App. 2007).

¶ 12 Absent limited exceptions not relevant here, CRE 615 provides

that upon the request of a party, the trial court shall order the

exclusion of witnesses from the courtroom “so that they cannot

hear the testimony of other witnesses.” “The purpose of a

sequestration order is to ‘prevent a witness from conforming his [or

her] testimony to that of other witnesses and to discourage

fabrication and collusion.’” People v. Villalobos, 159 P.3d 624, 629

(Colo. App. 2006) (alteration in original) (citations omitted).

¶ 13 However, article II, section 16a of the Colorado Constitution

provides that “surviving immediate family members . . . shall have

the right to be heard when relevant, informed, and present at all

critical stages of the criminal justice process.” The legislature has

codified this right in part 3 of title 24, article 4.1 (the Victims’

Rights Act), and section 24-4.1-302.5(1)(b), C.R.S. 2016, states that

4
victims have “[t]he right to be informed of and present for all critical

stages of the criminal justice process as specified in section 24-4.1-

302(2).” See also People v. Coney, 98 P.3d 930, 935 (Colo. App.

2004). As relevant here, section 24-4.1-302(2), C.R.S. 2016, defines

“critical stages” to include preliminary hearings and the defendant’s

trial.

¶ 14 Although “CRE 615 does not provide authority for departing

from the constitution and statute,” Coney, 98 P.3d at 935, section

24-4.1-303(6)(a), C.R.S. 2016, states that “[a] victim . . . may be

present at all critical stages of a criminal proceeding regarding any

crime against such victim unless the court or the district attorney

determines that exclusion of the victim is necessary to protect the

defendant’s right to a fair trial.” (Emphasis added.)

B. Discussion

¶ 15 Based on our review of the record, we discern no abuse of

discretion by the trial court in allowing R.B.’s mother and brother to

be present during testimony at defendant’s preliminary hearing and

trial.

¶ 16 Initially, we note that R.B.’s mother and brother are both

included in the statutory definition of a “victim” under the Victims’

5
Rights Act. § 24-4.1-302(5). And because the Victims’ Rights Act

represents a decision on a matter of public policy — here, that

R.B.’s mother and brother have a right to be present during the trial

of her accused killer — the statute controls over CRE 615. See

People v. Wiedemer, 852 P.2d 424, 436 (Colo. 1993) (“In drawing the

distinction between substance and procedure, we have held that in

general, rules adopted to permit the courts to function and function

efficiently are procedural whereas matters of public policy are

substantive and are therefore appropriate subjects for legislation.”);

see also People v. McKenna, 196 Colo. 367, 372-73, 585 P.2d 275,

278-79 (1978) (on substantive matters, a statute controls over a

rule promulgated by the court); Coney, 98 P.3d at 935.

¶ 17 Nonetheless, as defendant points out, section 24-4.1-303(6)(a)

provides a trial court with authority to exclude a deceased victim’s

family members if it “determines that exclusion . . . is necessary to

protect the defendant’s right to a fair trial.” However, while

defendant is correct that the court had authority to exclude R.B.’s

mother and brother, the trial court determined that such exclusion

was not necessary in this case. And based on the reasons given by

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defense counsel for the need to exclude the witnesses, we discern

no abuse of discretion by the trial court in reaching that decision.

¶ 18 At the preliminary hearing, defense counsel contended that

R.B.’s mother and brother should have been excluded from the

courtroom because they were not collateral witnesses and because

“we’ll probably learn through the course of th[e] hearing through

the D.A. investigator . . . that there ha[d] been a lot of rumors and

information being exchanged between various witnesses.” The

prosecutor responded that she did not “know what [defense

counsel] [wa]s referencing in that last portion” and asked that R.B.’s

mother and brother be allowed to remain in the courtroom for the

preliminary hearing. Because the family members were not

scheduled to testify at the hearing, and in light of “the mandate

contained in the Constitution permitting the family to remain in the

courtroom,” the court, relying on Coney, allowed R.B.’s family to

remain.

¶ 19 The court and the parties revisited the issue at trial. Citing

Coney for the proposition that victims have a right to be present

during trial, the court asked defense counsel, “And I guess what I

don’t know from the defense is, what is your specific objection if

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they are here? I’m assuming there are police reports. But did you

have a specific objection or is there an order that we can do?” The

following colloquy then occurred:

[Defense counsel:] Your Honor, I just — Your
Honor, I am just concerned about witnesses,
any witnesses watching testimony of other
witnesses and discussing that testimony with
other witnesses.

...

[Court:] And so you’re just concerned that they
might talk to each other about the witnesses or
what are you concerned about specifically?

[Defense counsel:] Yes. I am concerned about
talking about testimony that they’ve observed
and seen with other witnesses who may testify.

[Court:] And I can admonish them. But what
is the prosecution’s position?

[Prosecutor:] They’ve been instructed to that
part of the sequestration order, that that
would apply to them and they’re not to discuss
either their own testimony or anything that
they would hear.

¶ 20 In ruling on defense counsel’s request, the court stated that in

“balancing . . . the victim’s constitutional right and the defendant’s

constitutional right to due process,” it would allow R.B.’s mother

and brother to watch the trial. However, the court gave both the

following admonishment:

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Whatever you hear in the courtroom, you
cannot tell anyone else, and that’s an order of
the Court which is subject to contempt. And
so you can’t go home at night and tell others,
especially those other people that might testify.

And I would ask you not to talk at all to
anyone about the testimony you hear during
these two weeks, because that could go
through a chain and then somebody that may
testify could hear it from a third party that
you’ve told. So I’m going to ask that you do
not discuss anything you heard in the
courtroom with anyone else until this trial is
over.

And under that scenario, I will allow you then
to sit through the trial.

¶ 21 The court then asked both witnesses if they understood its

order, and both replied that they did.

¶ 22 In this case, defense counsel was unable — at either the

preliminary hearing or defendant’s trial — to articulate any specific

grounds raising concerns that the witnesses would conform their

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testimony.1 And although appellate counsel offers portions of the

mother’s and brother’s testimony that are similar to other

witnesses’ testimony, the trial court had not heard any trial

testimony at the time it made its ruling.2

¶ 23 Lastly, we note that to the extent the mother’s or brother’s

trial testimony was different from the account they gave in their

reports to police, defendant had access to those reports and was

free to impeach the witnesses on that basis.

¶ 24 In sum, in light of (1) defense counsel’s failure to identify any

specific grounds raising concerns about conforming testimony; (2)

the court’s admonishment, which we presume the witnesses

1 In light of the record, even if we assume that we should apply the
various balancing tests applied by other courts, we would reach the
same result. See, e.g., In re Mikhel, 453 F.3d 1137, 1139 (9th Cir.
2006) (per curiam) (“[Under the Federal Crime Victim’s Rights Act,]
[a] district court may exclude a victim-witness from the courtroom if
the court finds by ‘clear and convincing evidence . . . that testimony
by the victim would be materially altered if the victim heard other
testimony at that proceeding.’”) (emphasis added) (citation omitted);
Gabriel v. State, 925 P.2d 234, 236 (Wyo. 1996) (in considering
whether to allow an exception to the rule requiring courts to grant a
defendant’s motion to sequester witnesses, “the standard is whether
good cause is shown that the exemption should not be granted”)
(emphasis added).
2 In any event, as defendant acknowledges, similar testimony may

simply have resulted from the witnesses perceiving the events in the
same way.

10
understood and followed, see, e.g., People v. Rhea, 2014 COA 60,

¶ 68; and (3) defendant’s opportunity to cross-examine the

witnesses, we discern no abuse of discretion by the trial court in

allowing R.B.’s mother and brother to be present during testimony

at defendant’s preliminary hearing and trial.

III. Basketball Analogy

¶ 25 Defendant next contends that the trial court committed

reversible error when it used a basketball analogy to explain to the

jury the law of intoxication. We are not persuaded.

A. Additional Background

¶ 26 During voir dire, defense counsel questioned jurors about an

intoxication defense, at which point several jurors expressed their

opinion that a defendant, even if intoxicated, is nonetheless

responsible for his or her actions. For instance, defense counsel

asked a juror, “What about a situation where somebody is . . .

charged with actually killing somebody with intent and after

deliberation, causing the death of another person and that they

claim I’m not responsible because I didn’t mean to do it because I

was so drunk.” The juror responded,

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Well . . . there are different types of murder:
[f]irst-degree murder, you know,
manslaughter, things like that, so it might
lessen the ultimate charge or what they’re
charged with. But I do believe they’re
responsible for their actions. If it’s the
drinking that causes them to commit the
murder, then they’re responsible for the
drinking to begin with.

¶ 27 After a number of similar questions and answers, the trial

court interjected and told the jurors that “[w]e’re not trying to ask,

do you like the law or do you hate the law or, in this situation, what

do you think about that law or that law? It’s just really, whatever it

is, can you follow the law?” After more of the same questioning, the

trial court provided the jury with the following analogy:

The law of intoxication. If we are at a
[basketball] game. Say you’re shooting —
you’re running down the court trying to make
a basket and you jump up and you made a
shot. You intended, at that point, to make a
basket, right?

All right. And so, if you have the intent to
make the basket and you jump up and do it.
By doing that, you’re showing you have that
intent.

If you are intoxicated, as a jury, as you believe
that the person is running down in the
basketball game is so intoxicated, you have to
decide if they’re so intoxicated about they —
whatever the evidence you hear, that they can

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no longer have that intent to shoot the basket
because they’re so intoxicated. So it’s just one
of the elements that the prosecution has to
prove.

And I don’t — I don’t want to go through all the
legal parts of it. And as I said, we don’t know
what the evidence is going to be. We don’t
even know if it’s going to be brought up. I
don’t know. But generally, it just goes to the
intent. It’s one of the elements the prosecution
will have to show.

B. Discussion

¶ 28 Defendant contends that “[t]he court told the jurors they

would need to, in essence, determine whether that player had ‘that

intent to shoot the basket,’ or not due to intoxication.” In doing so,

defendant continues, the court “left out entirely the question of

whether the player had intended to make the basket or not.”

Defendant asserts that in failing to make this distinction, the court

informed the jury that it should be concerned with whether

defendant “acted intentionally, not whether he intended to cause

R.B.’s death.”

¶ 29 As an initial matter, the jury did not necessarily parse the

court’s comments in the same manner as, and draw the same

conclusions that, defendant does on appeal. Furthermore, as the

13
Attorney General points out, the court, in its initial analogy, said,

“You intended, at that point, to make a basket, right?” In light of

this initial comment, it is possible that the jury interpreted the

court’s analogy to mean that intoxication, under appropriate

circumstances, could have negated the hypothetical shooter’s intent

to “make” the basket.

¶ 30 But even if the trial court’s analogy constituted error, reversal

would not be required under the plain error standard of review. See

People v. Carter, 2015 COA 24M, ¶ 13 (assuming without deciding

that the trial court’s reasonable doubt analogy was erroneous, but

concluding that such an error did not require reversal under the

plain error standard).

¶ 31 To establish plain error, defendant must show that the

putative error was both obvious and so substantial that it

undermined the fundamental fairness of the trial itself, casting

serious doubt on the reliability of the judgment of conviction.

People v. Miller, 113 P.3d 743, 750 (Colo. 2005). We conclude that

defendant has failed to establish that the court’s error, if any, was

substantial.

14
¶ 32 First, as defendant acknowledges, at the close of evidence, the

trial court correctly instructed the jury that (1) “[t]he evidence

presented . . . has raised the question of self-induced intoxication

with respect to the offense of Murder in the First Degree, and

Criminal Attempt[ed] Murder in the First Degree”; (2) it could

“consider whether or not evidence of self-induced intoxication

negates the existence of the elements of ‘after deliberation and with

intent’”; (3) “[t]he prosecution has the burden of proving all the

elements of the crimes charged beyond a reasonable doubt”; and (4)

if it found “the defendant was intoxicated to such a degree that he

did not act with the required mental state, you should find him not

guilty of that offense.” We presume the jury understood and

followed the trial court’s instructions, and nothing in the record

rebuts that presumption. See Carter, ¶¶ 58-59 (assuming the trial

court’s use of a puzzle analogy to explain reasonable doubt was

erroneous, the division concluded that reversal was not required

under the plain error standard because the court correctly

instructed the jury on the definition of reasonable doubt); see also

People v. Baca, 2015 COA 153, ¶¶ 13-14 (same); People v. Boyd,

2015 COA 109, ¶¶ 12-13 (“[A]ny risk of prejudice here was

15
mitigated by the court’s written jury instructions, which correctly

articulated the burden of proof and the presumption of innocence

and which we presume the jury understood and correctly applied.”)

(cert. granted Mar. 21, 2016); People v. Estes, 2012 COA 41, ¶ 12

(same).

¶ 33 Second, the trial court began its analogy by referencing the

shooter “mak[ing] a basket,” and it ended its analogy by telling the

jury that intoxication “generally . . . goes to the intent,” which is

“one of the elements the prosecution will have to show.” Thus, as

we set forth above, it is possible that the jury interpreted the court’s

analogy to mean that defendant’s intoxication could have negated

his specific intent to cause R.B.’s death.

¶ 34 Lastly, as the Attorney General notes, during closing

arguments, the parties focused on the court’s correct self-induced

intoxication instruction, rather than on the allegedly erroneous

basketball analogy.

¶ 35 For all of these reasons, any error in the trial court’s analogy

would not be so substantial that it would undermine our confidence

in the reliability of the judgment of conviction. See Miller, 113 P.3d

at 750.

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IV. Cross-Examination

¶ 36 Defendant last contends that the trial court erred in

precluding his counsel from asking a prosecution witness, Amanda

DeLeon, whether S.E. had smoked marijuana on the day of the

attempted murder. We are not persuaded.

A. Additional Background

¶ 37 Before trial, defendant filed a motion in limine asking the

court to bar the prosecution from introducing evidence of his drug

use. At a hearing on the motion, the prosecution stated that it did

not intend to introduce such evidence. However, it noted that it

planned to offer for admission photos of defendant’s apartment, and

that a number of those photos “contain[ed] numerous bongs.”

¶ 38 While the parties and the court discussed how to resolve this

problem, defense counsel stated that she might seek to question

prosecution witnesses about their alleged drug use, contending that

such evidence was relevant to the witnesses’ credibility. When the

court asked how that information was relevant to credibility,

counsel responded that the witnesses’ alleged drug use at the time

of the events about which they would testify could have altered the

witnesses’ ability to perceive and recall the events. Referring to

17
R.B.’s murder, the court agreed, saying, “I understand for the night

of the incident, that would be relevant for everybody that was there

if anybody is going to testify about what happened.”

¶ 39 The prosecution called the attempted murder victim, S.E., on

the fifth and sixth days of trial. On direct examination, she said

that defendant had strangled her and did not stop doing so until

her friend, DeLeon, forced her way into S.E. and defendant’s

bedroom and pulled defendant off of her. Although defense counsel

impeached S.E.’s credibility during cross-examination, she did not

ask S.E. whether she had been under the influence of marijuana on

the day of the attempted murder.

¶ 40 The prosecution then called DeLeon. During the prosecutor’s

direct examination, DeLeon said that she did not remember a

number of the details of the incident as she had previously

represented them in an interview with the police. For instance,

DeLeon initially told the police that she heard S.E. screaming for

help and, in response, she (or another individual who was present

at the time) forced her way into the bedroom and pulled defendant

off of S.E. During her direct examination, however, she said that

she only remembered defendant sitting on S.E. to stop S.E. from

18
scratching and hitting him; she did not remember (1) the couple

arguing in the bedroom; (2) S.E. calling for help; or (3) forcing her

way into the bedroom. The prosecutor ended her questioning by

asking DeLeon if she had been smoking marijuana on the day of the

attempted murder, and DeLeon responded that she had.

¶ 41 During cross-examination of DeLeon, defense counsel asked

whether DeLeon had been smoking marijuana with S.E. on the day

in question. The prosecutor objected, contending that it was an

improper question because “[y]ou can ask this witness about her

ability to perceive, but you can’t ask her to comment on another

witness’ ability to perceive . . . [s]he can’t comment on that because

that’s not for this witness.” Defense counsel responded that she

was “not asking her to make a comment on [S.E.’s] ability to

perceive. I’m asking her to say whether or not she was smoking

marijuana or not, and the jury can determine whether it’s relevant

to her credibility or not.” The trial court asked defense counsel a

follow-up question: “[I]f you’re not asking whether or not it affected

her ability to perceive, why is it relevant?” Counsel replied that

“that’s a determination for the jury to make, Judge. It’s not a

determination for Ms. DeLeon to determine whether it affects other

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people. . . . How could she determine if it affected [S.E.’s] ability.

The fact that she was using drugs goes to her credibility.”

¶ 42 Ultimately, the trial court sustained the objection. It reasoned

that

[i]f defense had asked . . . the victim, [S.E.],
whether she was smoking marijuana at the
time this occurred, I think that would be
relevant because then they can talk about
whether her perceptions were different or
whatever. It’s only relevant if you can say that
by smoking marijuana, it’s affected her like
she said been smoking all day or been smoking
for three days, or whatever. But right now,
what is the jury going to be left with?

The jury will be left with your scenario that she
had issues with smoking marijuana. They
won’t know how much or her perception
because there’s nobody here to testify what
that was like. It’s just going to hang out there.
And that’s why we did the motion in limine
ahead of time because if you want [to] bring it
up, if you want to do this, you can’t do it
through impeachment, but you can bring it up
in your case-in-chief.

...

I just don’t find that that’s going to be relevant
at this point. And I think it just goes to her
character without any basis.

20
B. Standard of Review

¶ 43 Trial courts are vested with broad discretion regarding the

admissibility of evidence, see, e.g., People v. Manyik, 2016 COA 42,

¶ 83, and the extent and type of cross-examination they will allow,

People v. Silva, 987 P.2d 909, 918 (Colo. App. 1999). Accordingly,

we will not disturb a trial court’s decision regarding such matters

absent an abuse of discretion. Manyik, ¶ 83. To establish an abuse

of discretion, a defendant must show that the trial court’s decision

was manifestly arbitrary, unreasonable, or unfair, or was based on

a misunderstanding or misapplication of the law. Id. at ¶ 65.

¶ 44 Defendant preserved the contention he now raises on appeal,

so we apply the harmless error standard to determine if reversal is

required. See Merritt v. People, 842 P.2d 162, 166-67 (Colo. 1992).

C. Applicable Law

¶ 45 “All relevant evidence is admissible, except as otherwise

provided by” the United States or Colorado Constitutions, statute,

or other rule. CRE 402; see also Yusem v. People, 210 P.3d 458,

463 (Colo. 2009). And evidence is relevant if it has “any tendency to

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

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determination of the action more probable or less probable than it

would be without the evidence.” CRE 401.

¶ 46 “[W]hether the witness was, at the time of the events as to

which he testifies, under the influence of some drug that could have

affected his perception of those events bears directly on credibility.”

People v. Dunham, 2016 COA 73, ¶ 27. This type of evidence is

generally relevant, then, because “reasonable inquiry regarding

matters probative of the credibility of [a] witness is always relevant

on cross-examination.” People v. Mandez, 997 P.2d 1254, 1267

(Colo. App. 1999).

¶ 47 However, under CRE 403, even relevant evidence “may be

excluded if its probative value is substantially outweighed by the

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

the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”

¶ 48 Consistent with CRE 403, “a trial court has wide latitude,

insofar as the Confrontation Clause is concerned, to place

reasonable limits on cross-examination based on concerns about,

for example, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation which is repetitive or only

22
marginally relevant.” Merritt, 842 P.2d at 166. But a trial court

should not excessively limit a defendant’s cross-examination of a

witness regarding the witness’s credibility. Id.

D. Discussion

¶ 49 As an initial matter, we agree with defendant that evidence of

S.E.’s alleged marijuana use on the day of the attempted murder

was relevant. See Dunham, ¶ 27. We do not agree, however, that

the trial court abused its discretion in precluding defense counsel

from asking one witness, DeLeon, whether another witness, S.E.,

was under the influence of marijuana on the day in question.

¶ 50 Although the court did not precisely identify CRE 403 in ruling

on the prosecutor’s objection, the reasons it articulated for

precluding defense counsel’s question suggests that the court

viewed the probative value of DeLeon’s expected answer as being

outweighed by the danger of unfair prejudice and misleading the

jury. And that conclusion — which we agree with — was based on

the procedural posture in which the question was asked.

¶ 51 Evidence of a witness’s drug use is relevant because it bears

on a witness’s perception and memory of an event about which the

witness is testifying. See Dunham, ¶ 27; see also People v. Roberts,

23
37 Colo. App. 490, 491, 553 P.2d 93, 94 (1976) (noting that it is

improper to question a witness about his or her drug addiction

“merely for purposes of attacking the credibility of the witness”).

¶ 52 In this case, defense counsel had a prior opportunity to ask

S.E. whether or not she had been under the influence of marijuana

on the day in question. She did not do so. Instead, she asked a

different witness, DeLeon, that question. And although DeLeon

could have given a simple yes or no answer, as the trial court noted,

and defense counsel acknowledged, DeLeon could not have spoken

to the impact of the alleged marijuana consumption on S.E.’s

perceptions or memory. Thus, based on the procedural posture in

which defense counsel’s question was asked, DeLeon’s answer

would have had little, if any, probative value.

¶ 53 In contrast, DeLeon’s expected answer carried with it the

danger for unfair prejudice and misleading the jury. As the trial

court concluded, absent any testimony connecting S.E.’s putative

marijuana consumption to her perception of, or ability to

remember, the events in question, the “jury w[ould] be left with

[counsel’s] scenario that she had issues with smoking

marijuana. . . . It’s just going to hang out there.” In other words,

24
without an explanation of the effects of the marijuana on that

particular day, there was a danger that the jury would infer that (1)

S.E. was a drug user; and (2) because she was a drug user, her

testimony was generally less credible. And such an inference would

have been improper because evidence of a witness’s “purported

drug addiction” is inadmissible “merely for purposes of attacking

the credibility of the witness.” Roberts, 37 Colo. App. at 491, 553

P.2d at 94.

¶ 54 The propriety of the court’s CRE 403 ruling is reinforced by its

statement to counsel that “if you want to do this, you can’t do it

through impeachment, but you can bring it up in your

case-in-chief.” This statement acknowledges that the probative

value of the evidence of drug use would have been higher if the

question had been asked of S.E., who would then have had an

opportunity to explain the effect of any such drug use on her

perception of, and ability to remember, the attempted murder.

¶ 55 In sum, based on the procedural posture in which it was

asked, we discern no abuse of discretion by the trial court in

precluding defense counsel from questioning DeLeon about S.E.’s

alleged marijuana use.

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V. Conclusion

¶ 56 The judgment is affirmed.

JUDGE TERRY and JUDGE BERGER concur.

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