Peo v. Collins

20CA0235 Peo v Collins 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0235

Arapahoe County District Court No. 18CR2083

Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joseph Allen Collins Jr.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE BERGER

Román and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Sedlak & Associates, P.C., Joseph A. Sedlak III, Joseph A. Sedlak IV, Denver,

Colorado, for Defendant-Appellant

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¶ 1 Defendant, Joseph Allen Collins, Jr., appeals the judgment of

conviction entered upon jury verdicts finding him guilty of second

degree murder, attempted second degree murder, possession of a

weapon by a previous offender, two counts of menacing, and three

habitual criminal counts. Collins contends that the trial court

erred when it excluded testimony from the deceased victim’s brother

that the deceased victim usually carried a gun on him. We

disagree, and therefore, affirm.

I. Background

¶ 2 Collins was charged with crimes stemming from an incident

during which two victims, Z.R. and Z.W., were shot. According to

the prosecution’s evidence, on the night before the shooting, Collins

spent the evening with Z.R., Z.W., and two other people. By all

accounts, everyone’s interaction that evening was amicable.

¶ 3 The next day, Collins, Z.R., Z.W., and two of Collins’s friends

walked to a convenience store. During that outing, Collins shot and

killed Z.R. and shot and wounded Z.W. Collins’s defense at trial

was that he acted in self-defense because he saw Z.R. reach into the

waistband of his pants and thought he was reaching for a gun.

However, no guns were found at or near the crime scene.

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¶ 4 Z.W. testified that although either he or Z.R. usually carried a

gun, neither of them had a gun on them the day of the shooting.

He also testified that he saw Collins point a gun a Z.R. and then

saw Z.R. fall to the ground, but he did not see Z.R. reach for a gun.

¶ 5 In contrast, Collins told police that he saw Z.R. take a gun out

of his backpack the night before the shooting. As for the day of the

shooting, Collins told the police that he did not see Z.R. with a gun,

but that he saw Z.R. reaching for his waistband, which he thought

meant he was reaching for a gun. And, while there was testimony

that Z.R. had a backpack the night before the shooting, it was

undisputed that Z.R. did not have the backpack with him when the

shooting occurred and that no gun was found in the backpack after

the shooting.

¶ 6 Collins sought to introduce testimony from Z.R.’s brother that

when he retrieved Z.R.’s backpack he was surprised that there was

no gun in the backpack or on his brother’s person when the

shooting occurred because it was unlike his brother to not be

armed. Collins argued that evidence that Z.R. normally carried a

gun and acted in conformity with that habit was relevant and

permissible to demonstrate the reasonableness of his use of deadly

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force in defending himself. Collins’s argument about Z.R. acting in

conformity with his character, even though no gun was found, was

premised on the assumption that Z.R. had one on him and either

Z.W. disposed of it or the police investigation was just not thorough

enough to find it.

¶ 7 The prosecution objected to the admission of the brother’s

testimony as improper character evidence and as irrelevant to the

self-defense claim because there was no evidence that Collins knew

Z.R. generally carried a gun.

¶ 8 The trial court agreed with the prosecution. It found that

while the proposed testimony demonstrated Z.R. generally carried a

gun, it also supported the evidence that Z.R. did not have a gun on

the day of the shooting. Further, the court found that there was no

evidence that Collins knew of Z.R.’s habit or custom of carrying a

gun. Thus, the trial court concluded that the evidence was not

relevant to Collins’s self-defense claim and excluded the evidence.

II. No Error in Excluded Reputation Evidence

¶ 9 Collins contends that the trial court erred when it excluded

Z.R.’s brother’s testimony. Specifically, he argues that the brother’s

testimony would have supported his self-defense claim and by

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excluding that evidence the trial court violated his constitutional

right to present a defense. We disagree.

A. Standard of Review

¶ 10 We review a trial court’s evidentiary rulings for an abuse of

discretion. Zapata v. People, 2018 CO 82, ¶ 25. A trial court

abuses its discretion when its decision is manifestly arbitrary,

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

law. People v. Elmarr, 2015 CO 53, ¶ 20.

B. Applicable Legal Principles

¶ 11 Trial courts have broad discretion in determining the

admissibility of evidence based on its relevance, probative value,

and prejudicial impact. Id. Unless otherwise provided by

constitution, statute, or rule, all relevant evidence is admissible;

but, evidence that is not relevant is not admissible. CRE 402.

Relevant evidence is evidence “having any tendency to make the

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

the action more probable or less probable than it would be without

the evidence.” CRE 401. Relevant evidence may be excluded,

however, “if its probative value is substantially outweighed by the

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

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

needless presentation of cumulative evidence.” CRE 403.

¶ 12 Whether evidence is relevant and probative can affect a

criminal defendant’s constitutional right to present a defense.

People v. Salazar, 2012 CO 20, ¶ 17. While the Constitution

guarantees a criminal defendant a meaningful opportunity to

present a complete defense, see Krutsinger v. People, 219 P.3d

1054, 1061 (Colo. 2009), the right to present a defense is not

absolute as the Constitution requires only that the accused be

permitted to introduce relevant and admissible evidence. People v.

Rodriguez, 209 P.3d 1151, 1160 (Colo. App. 2008) (citing People v.

Harris, 43 P.3d 221, 227 (Colo. 2002)).

¶ 13 As pertinent here, self-defense justifies the use of deadly

physical force if the actor is defending himself or a third person

from what he reasonably believed to be the use or imminent use of

unlawful physical force by the alleged victim, and he (1) reasonably

believed a lesser degree of force was inadequate, and (2) had a

reasonable ground to believe, and did believe, that he or another

person was in imminent danger of being killed or of receiving great

bodily injury. § 18-1-704(1), (2), C.R.S. 2020.

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¶ 14 Although character evidence is not generally admissible to

prove conduct, a defendant claiming self-defense may put into

evidence the victim’s reputation for violence. CRE 404(a)(2); People

v. Jones, 675 P.2d 9, 17 (Colo. 1984) (when asserting self-defense, a

defendant may use prior acts of violence of the victim, of which the

defendant had knowledge, as direct evidence of the reasonableness

of the defendant’s belief in the imminent use of unlawful physical

force against him or her). However, evidence of past violent acts is

relevant only if the defendant can establish that he had knowledge

of those acts and acted on the basis of that knowledge. People v.

Ibarra, 849 P.2d 33, 38-39 (Colo. 1993); People v. Marquantte, 923

P.2d 180, 184 (Colo. App. 1995) (concluding that the court did not

err in excluding testimony about victims’ reputation for violence

because there was no evidence that the defendant knew of the

victims’ prior violent acts). Thus, if a defendant asserting a claim of

self-defense did not, at the time of the offense, have actual

knowledge of the victim’s particular character trait, evidence of

such character is inadmissible under CRE 404(a)(2). See People v.

Ferguson, 43 P.3d 705, 710 (Colo. App. 2001) (discussing

admissibility of victim’s specific acts of violence).

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C. Analysis

¶ 15 Here, the proffered testimony from Z.R.’s brother was that Z.R.

usually carried a gun with him. However, there was no evidence

that Collins was aware that Z.R. usually carried a gun. Further,

there was no evidence that Z.R. was carrying a gun on the day of

the shooting and no gun was found in Z.R.’s possessions following

the shooting.

¶ 16 While Collins admitted to the police that he did not see Z.R.

pull a gun, he told them that he believed Z.R. was reaching for a

gun because he saw him reaching into his waistband. Thus, the

crucial issue related to Collins’s self-defense claim was whether

Collins’s belief that Z.R. was reaching for a gun when he shot him

was reasonable. See People v. Rodriguez, 888 P.2d 278, 286 (Colo.

App. 1994) (“The touchstone of self-defense is whether, from the

standpoint of the defendant, his belief that danger was imminent is

reasonable.”).

¶ 17 However, because Collins was not aware that Z.R. generally

carried a gun with him, the excluded evidence was not relevant to

whether Collins reasonably believed he was in imminent danger.

See Ibarra, 849 P.2d at 38-39; Jones, 675 P.2d at 17; Rodriguez,

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888 P.2d at 286-87 (because defendant was not aware of the

victims’ “penchant for guns and violence[,]” the information

defendant hoped to elicit about the victims’ habit was not relevant).

¶ 18 Moreover, Z.W. testified that he and Z.R. usually carried guns

with them but that neither of them had a gun with them when

Collins shot them. Thus, because evidence of Z.R.’s custom or

habit of carrying a gun was before the jury, the brother’s testimony

was cumulative of that other evidence.

¶ 19 Finally, contrary to Collins’s assertion, the exclusion of this

evidence did not violate his constitutional right to present a defense

because the evidence was not relevant. See Rodriguez, 209 P.3d at

1160. Despite the court excluding the brother’s testimony, the jury

had before it (1) information that Z.R. generally carried a gun; (2)

Collins’s statements to the police that he saw Z.R. with a gun the

night before the shooting; and (3) an instruction on the affirmative

defense of self-defense. And, during closing argument, defense

counsel argued that:

• Just because no gun was found in Z.R.’s possession or at

the scene doesn’t mean that Collins’s belief that he

thought Z.R. was reaching for a gun in his waistband

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was unreasonable because Collins had told police that he

saw Z.R. with a gun the night before the shooting.

• The police investigation was not thorough and Z.W. could

have easily disposed of the weapon before the police

arrived.

¶ 20 Thus, the exclusion of that evidence did not prevent Collins

from presenting a defense.

¶ 21 Consequently, the trial court did not abuse its discretion in

excluding the brother’s testimony about Z.R.’s custom or habit of

carrying a gun.

III. Conclusion

¶ 22 The judgment of conviction is affirmed.

JUDGE ROMÁN and JUDGE YUN concur.