14CA0848 Peo v Mitchell 09-13-2018
COLORADO COURT OF APPEALS
Court of Appeals No. 14CA0848
La Plata County District Court No. 12CR165
Honorable Jeffrey R. Wilson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Tommy Mitchell,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE FOX
Webb and Richman, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 13, 2018
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Samler Whitson PC, Hollis A. Whitson, Eric A. Samler, Denver, Colorado, for
Defendant-Appellant
Table of Contents
I.
Background ....................................................................1
II.
Sufficiency of the Evidence ..............................................2
A.
Preservation and Standard of Review ...............................3
B.
Attempted Robbery ..........................................................4
1.
Relevant Background ......................................................5
2.
Law and Analysis ............................................................8
C.
Theft of Property Under $500 ........................................11
III.
Recusal .........................................................................15
A.
Relevant Background ....................................................15
B.
Judicial Bias and the Right to a Fair Trial......................18
1.
The Appearance of Partiality Under Colorado Law ..........22
2.
Evaluating Recusal Motions ..........................................25
C.
Preservation and Standard of Review .............................27
D.
Timeliness.....................................................................30
E.
Analysis ........................................................................34
IV.
Evidentiary Issues .........................................................44
A.
Standard of Review .......................................................44
B.
Challenges to Admitted Evidence ...................................45
1.
Preservation and Applicable Law ...................................45
2.
Gun-Related Evidence ...................................................50
a.
Reputation for Carrying Guns .......................................50
i
b.
Trading Drugs for Guns ................................................51
3.
Prior Homicide ..............................................................52
a.
Relevant Background ....................................................52
b.
Analysis ........................................................................59
i.
Rule 404(a)(2), Rule 405(a), and Rule 405(b) Testimony .59
ii.
Rule 404(b) ...................................................................61
4.
Gang Membership .........................................................64
a.
Relevant Background ....................................................64
b.
Analysis ........................................................................66
5.
Drug-Related Evidence ..................................................69
6.
Reversible Error ............................................................71
C.
Other Evidentiary Issues ...............................................72
1.
Preservation ..................................................................73
2.
Law and Analysis ..........................................................73
V.
Remaining Issues Raised on Appeal ...............................78
VI.
Conclusion ....................................................................79
ii
¶1
Tommy Mitchell appeals his convictions for felony murder,
burglary, theft, and attempted robbery. We conclude that because
the trial judge’s pretrial comments demonstrated an appearance of
partiality, the judge erred in denying Mitchell’s motion to recuse.
Additionally, significant bad character evidence was erroneously
admitted. For both of these reasons, we reverse and remand for a
new trial conducted before a different judge.
I.
¶2
Background
The evidence at the trial discloses that a nineteen-year-old
Mitchell, a small-time drug dealer, had fronted the victim, Joey
Benavidez, $780 to purchase marijuana. Mitchell went to
Benavidez’s house in Ignacio, Colorado, to wait for the marijuana to
be delivered by third parties. What exactly happened inside the
house is disputed.
¶3
Mitchell testified that Benavidez pulled a butterfly knife,1
threatening his companion, Elijah Anglin, and in defense of Anglin,
Defense counsel described a butterfly knife at trial as “an illegal
weapon in Colorado . . . because it’s a loose flying blade that spins
around. . . . And the two handles lock down . . . and then it turns
into a stiff blade. They’re illegal because you can conceal them and
open them real fast and go after somebody.”
1
1
Mitchell shot Benavidez. Benavidez was ultimately shot to death in
the driveway by Mitchell and Anglin.
¶4
Mitchell was charged with numerous crimes. As relevant here,
the jury convicted him of felony murder (attempted robbery
predicate), felony murder (burglary predicate), second degree
murder, two counts of burglary (one predicated on robbery, one
predicated on theft), theft of property under $500, and attempted
robbery. The judge merged the felony murder (burglary predicate)
and second degree murder convictions into the felony murder
(attempted robbery predicate) conviction. Mitchell was sentenced to
life without the possibility of parole.
II.
¶5
Sufficiency of the Evidence
Mitchell argues that the evidence was insufficient to support
his convictions for count 2 felony murder (attempted robbery
predicate), count 3 felony murder (burglary predicate), count 7
burglary (robbery predicate), count 16 burglary (theft predicate),
2
count 19 theft of property under $500, and count 25 attempted
robbery.2
A.
¶6
Preservation and Standard of Review
The parties agree Mitchell preserved his sufficiency claims in
his motion for judgment of acquittal on all counts.
¶7
“We review de novo whether the evidence is sufficient to
support a conviction.” People v. Randell, 2012 COA 108, ¶ 29. In
evaluating the sufficiency of the evidence, we must determine
whether a rational fact finder might accept the evidence, taken as a
whole and in the light most favorable to the prosecution, as
sufficient to support a finding of the defendant’s guilt beyond a
On remand, Mitchell cannot be retried on any charges of which he
was acquitted. § 18-1-301(1)(a), C.R.S. 2017. While Mitchell does
not specifically list second degree murder (count 1) as a count with
insufficient evidence to support the conviction, section IV.C of
Mitchell’s opening brief argues there was insufficient evidence to
support count 1. Because there is sufficient evidence on this count,
Mitchell may be retried for it. But, the jury instructions given on
remand must follow the supreme court’s guidance in Castillo v.
People, 2018 CO 62, and avoid an appearance of shifting the
burden of proof from the prosecution to Mitchell, see People v.
Monroe, 2018 COA 110, ¶ 29 (Reversal was required where “[a]
reasonable jury would be left with the erroneous understanding
that while it would not be permitted to impose an obligation or duty
to retreat, it could find that a reasonable person would have done
so.”). Thus, we do not further address Mitchell’s challenge to jury
instruction 16.
2
3
reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.
1999); Randell, ¶ 31. We may consider direct and circumstantial
evidence. People v. Duran, 272 P.3d 1084, 1090 (Colo. App. 2011).
¶8
Our inquiry is also guided by five well-established principles:
(1) we give the prosecution the benefit of every reasonable inference
that might fairly be drawn from the evidence; (2) the credibility of
witnesses is solely within the jury’s province; (3) we may not serve
as a thirteenth juror to determine the weight of evidence; (4) a
modicum of relevant evidence will not rationally support a
conviction beyond a reasonable doubt; and (5) verdicts in criminal
cases may not be based on guessing, speculation, or conjecture.
Sprouse, 983 P.2d at 778; Randell, ¶ 31.
B.
¶9
Attempted Robbery
The prosecution’s theory at trial was that Mitchell orchestrated
a plan and recruited friends to accompany him to Benavidez’s
house. The plan was to retrieve his $780 or the drugs Benavidez
owed him and take Benavidez’s phone, which would allow Mitchell
access to Benavidez’s drug sources. Mitchell testified there was no
such plan.
4
1.
¶ 10
Relevant Background
At the 2014 trial, Anglin, the codefendant who joined Mitchell
inside Benavidez’s house, testified on direct examination that
 on the way to Benavidez’s house, Mitchell said that if
Benavidez “didn’t have his money or his weed, he was
going to jack him”;
 Anglin and Mitchell always took guns to drug deals;
 Anglin and Mitchell discussed the possibility of taking
Benavidez’s phone on the drive to Benavidez’s house; and
 after Benavidez had been shot, Anglin took Benavidez’s
phone for Mitchell so Mitchell could access Benavidez’s
drug “connects.”
¶ 11
On cross-examination, Anglin testified that the plan was to
retrieve Mitchell’s money or the marijuana he purchased from
Benavidez. He claimed that there was not a definite plan to steal
anything from Benavidez.
¶ 12
Jeremiah Mason was in a second car that followed Mitchell
and Anglin’s car to Benavidez’s house. Mason testified that when
he had accompanied Mitchell to previous drug deals at Benavidez’s
house, they had taken a single vehicle, not a backup car with extra
5
people. Mason also stated that while he was not expressly
instructed to be a lookout, he watched the house with a pair of
binoculars while Mitchell and Anglin were inside.
¶ 13
Mason further testified:
 “[I thought we’d] get some weed and go shooting;3
 he could not initially recall stating, in his police
interview, that Mitchell told him, “I’m going to go to
Ignacio and fucking get some weed [if] this guy don’t give
my motherfucking weed or my money, I’m going to
probably have to kill the motherfucker and all that shit”;
but
 he believed Mitchell’s statements were a joke and in
response to the prosecutor’s question, “Does it appear to
you now that [Mitchell] actually had this planned out?”
Mason responded, “I can’t answer, I don’t know.”
¶ 14
Armando Yazzie, who was also in the second car, testified that
Mason clarified in response to a jury question that “go shooting” to
him meant “we [were] going to go out shooting and go fire off some
rounds” in the countryside.
3
6
 Mitchell brought two cars with multiple people to the
drug deal at Benavidez’s house;
 Yazzie assumed Mitchell brought guns because
“[Mitchell] was planning on threatening [Benavidez]”
although Mitchell did not actually say that;
 “[a]t the gas station, there was talk that [Mitchell] was
going to go collect money” that Benavidez owed Mitchell;
and
 although Yazzie was not told to be a lookout, he had a
feeling that was the case because this was not how
Mitchell had conducted prior drug deals.
¶ 15
Shanice Smith, Mitchell’s cousin, testified that she rode in the
second car and brought the AK-47 Mitchell had instructed her to
buy. Yazzie (not Smith) testified that Mitchell had arranged with
Smith that he would signal her if he needed her to approach the
house with the AK-47.
¶ 16
Finally, Mitchell’s then girlfriend, R.S. — a juvenile — testified
that she had arranged an alibi for Mitchell before he went to
Benavidez’s house.
7
2.
¶ 17
Law and Analysis
Under section 18-2-101(1), C.R.S. 2017,
[a] person commits criminal attempt if, acting
with the kind of culpability otherwise required
for commission of an offense, he engages in
conduct constituting a substantial step toward
the commission of the offense. A substantial
step is any conduct, whether act, omission, or
possession, which is strongly corroborative of
the firmness of the actor’s purpose to complete
the commission of the offense.
“Criminal attempt is a crime in which the defendant’s purpose is to
effect a criminal result.” People v. Derrera, 667 P.2d 1363, 1367
(Colo. 1983).
¶ 18
A person commits robbery when he “knowingly takes anything
of value from the person or presence of another by the use of force,
threats, or intimidation.” § 18-4-301(1), C.R.S. 2017.
¶ 19
When viewed as a whole and in the light most favorable to the
prosecution, a jury could reasonably conclude that Mitchell took a
substantial step toward taking “anything of value” (the phone,
money, or drugs) from Benavidez. Although Mitchell denied having
planned with Anglin to take Benavidez’s phone, his testimony
contradicted Anglin’s. The fact finder, not us, “consider[s] and
determine[s] what weight should be given to all parts of the
8
evidence, and . . . resolve[s] conflicts, inconsistencies, and disputes
in the evidence.” People v. Barrus, 232 P.3d 264, 271 (Colo. App.
2009); see also Montoya v. People, 2017 CO 40, ¶ 19 (“Although the
testimony at trial was often inconsistent or in conflict, it was for the
jury to decide which evidence to credit and how much weight to
assign that evidence, in light of all the admitted evidence . . . direct
and circumstantial.”).
¶ 20
Although the testimony of Mitchell’s confederates varied on
whether they believed a plan to rob Benavidez existed, a rational
juror could conclude Mitchell took substantial steps toward
committing a robbery. See Montoya, ¶ 23. Mason’s and Yazzie’s
testimony that Mitchell set up this drug deal differently from other
deals — bringing armed backup and an extra car — and Mitchell’s
alleged statements that he might have to “jack” Benavidez strongly
corroborate that Mitchell took substantial steps toward using force
against Benavidez to relieve him of specific property. See Derrera,
667 P.3d at 1371 (holding that defendant’s statements, “Give me
your money” and “I have a gun,” while reaching for an object and
trying to hit the victim with his car were sufficient to establish
attempted robbery).
9
¶ 21
Thus, the evidence was sufficient to support Mitchell’s
convictions for count 25 (attempted robbery) and count 2 (felony
murder with an attempted robbery predicate) because in the course
of the attempted robbery, Benavidez was shot. See § 18-3-102(1)(b),
C.R.S. 2017 (“A person commits the crime of murder in the first
degree if . . . [a]cting either alone or with one or more persons, he
. . . commits or attempts to commit . . . robbery . . . and, in the
course of or in furtherance of the crime that he . . . is committing or
attempting to commit, or of immediate flight therefrom, the death of
a person, other than one of the participants, is caused by
anyone[.]”).4
¶ 22
Because the evidence is sufficient to support convictions for
attempted robbery, as a predicate for felony murder, we need not
Given our conclusion here, instruction 37 clarifying that a rightful
owner may not use force to retake property — Mitchell’s money or
marijuana — was not erroneous. “[T]he robbery statutes endorse
the basic public policy that ‘even rightful owners should not be
permitted to . . . use force to regain their property, once it has been
taken.’” People v. Scearce, 87 P.3d 228, 231 (Colo. App. 2003)
(citation omitted). The trial testimony disclosed that Mitchell’s
objective was to take his money, his drugs, and/or Benavidez’s
phone. Because the jury might wonder if a person could properly
retake his property by force, the clarifying instruction is proper on
remand.
4
10
exhaustively address the sufficiency of the evidence supporting the
burglary counts of which Mitchell was convicted, because the felony
murder predicated on burglary would merge into a duplicative
felony murder conviction.5 Of course, because only Benavidez was
killed, Mitchell could be convicted of felony murder only once.
C.
¶ 23
Theft of Property Under $500
The theft statute Mitchell was charged under provides:
A person commits theft when he knowingly
obtains or exercises control over anything of
value of another without authorization, or by
threat or deception, and . . . [i]ntends to
deprive the other person permanently of the
use or benefit of the thing of value . . . . Theft
is . . . [a] class 2 misdemeanor if the value of
the thing involved is less than five hundred
dollars.
§ 18-4-401(1)(a), (2)(b), C.R.S. 2012.6
As discussed in Part IV.C, infra, we conclude that on remand
Mitchell may testify that Benavidez invited him inside. This
testimony is relevant to the knowledge element of burglary.
§ 18-4-202(1), C.R.S. 2017. The jury would be able to weigh this
evidence against evidence of Mitchell’s alleged plan and could
conclude that Mitchell knowingly entered or remained unlawfully
inside Benavidez’s house. Id. Thus, the evidence is sufficient to
retry Mitchell on the burglary counts.
6 The theft statute was amended in 2013 to now read:
5
11
¶ 24
The evidence was sufficient to support a theft conviction based
on a complicitor theory. Under a complicitor theory, “[a] person is
legally accountable as principal for the behavior of another
constituting a criminal offense if, with the intent to promote or
facilitate the commission of the offense, he or she aids, abets,
advises, or encourages the other person in planning or committing
the offense.” § 18-1-603, C.R.S. 2017. Complicity is not a separate
and distinct offense; it is a theory by which a defendant becomes
accountable for a criminal offense committed by another person.
A person commits theft when he or she
knowingly obtains, retains, or exercises control
over anything of value of another without
authorization or by threat or deception; or
receives, loans money by pawn or pledge on, or
disposes of anything of value or belonging to
another that he or she knows or believes to
have been stolen, and . . . [i]ntends to deprive
the other person permanently of the use or
benefit of the thing of value . . . . Theft is . . .
[a] class 2 misdemeanor if the value of the
thing involved is three hundred dollars or more
but less than seven hundred fifty dollars[.]
§ 18-4-401(1)(a), (2)(d), C.R.S. 2017.
12
People v. Jimenez, 217 P.3d 841, 871 (Colo. App. 2008). Thus, the
prosecution need not separately charge complicity. Id.
¶ 25
While the People do not specifically argue complicitor liability
on appeal, they reference it in footnote nine of the answer brief.
Further, jury instruction 9 informed the jury of the theory of
complicitor liability. However, the verdict forms did not distinguish
between liability as a principal or liability as a complicitor as to
theft.7
¶ 26
Anglin testified that (1) he accompanied Mitchell at his
request; (2) Mitchell discussed taking the phone before going to
Benavidez’s house; and (3) Anglin took Benavidez’s phone for
Mitchell. Thus, the jury could have reasonably inferred Mitchell
was complicit in the theft of Benavidez’s phone because he asked or
encouraged Anglin to take it.8
In contrast, the verdict forms for burglary were premised on a
complicitor theory. Mitchell was found not guilty as a complicitor
with Anglin, but he was found guilty as a complicitor for first degree
burglary (robbery predicate) with Smith. On remand, the verdict
forms for theft should specify complicitor liability.
8 On remand, instruction 38 should be revised. Currently,
instruction 38 states the jury may draw an inference from a
person’s possession of recently stolen property but fails to explain
what an “inference” is in the context of a criminal trial.
7
13
Wells v. People, 197 Colo. 350, 355, 592 P.2d 1321, 1325
(1979), is instructive:
Importantly, the unexplained, exclusive
possession of recently stolen goods creates
only an inference that the possessor was the
robber. Unlike a presumption of law, which
mandates a conclusion on the part of the jury,
an inference merely affords the evidence its
natural probative force, which the jury is free
to accept or reject. The weight or force to be
given the inference rests entirely with the jury.
Therefore, an instruction on unexplained and
exclusive possession of recently stolen
property should make the foregoing
emphatically clear so as not to confuse the
jury as to its function.
(Citation omitted.) The Wells court reversed the defendant’s robbery
conviction because the instruction did not precisely articulate the
proper function of the inference.
People v. Hampton, 758 P.2d 1344, 1355 (Colo. 1988), is
distinguishable. There, the instruction properly
did not tell the jury that the defendant’s
possession of the stolen property created an
inference that the defendant participated in
the robbery, as did the instruction
in Wells, but rather informed the jury that the
defendant’s unexplained possession of the
property served to create an inference that the
defendant “took such property.”
Thus, instruction 38 in its current form is analogous to the
instruction in Wells, not the one in Hampton, as the People argue.
On remand, the instruction must clarify the distinction between
14
III.
¶ 27
Recusal
Mitchell argues that based on the trial judge’s appearance of
partiality, the judge erred in refusing to recuse, thus denying him a
fair trial before an impartial judge. After considering the substance
and context of the judge’s comments at two codefendants’
sentencings, we agree that recusal was required because of the
appearance of partiality. Accordingly, we reverse the judgment of
conviction and remand the case for a new trial before a different
judge.
A.
¶ 28
Relevant Background
The trial judge began presiding over Mitchell’s case in January
2013. Mitchell filed his first motion to recuse in March 2013 based
on the judge’s prior representation (as an attorney) of Benavidez’s
bail bondsman in a 1997 matter where Benavidez was similarly
alleged to have possessed a butterfly knife. At an April 2013
hearing on the March motion, it came to light that the district
attorney and the judge had worked together at a small firm during
the pendency of the bail bondsman matter (1997-2002). Also at the
inference and presumption, and thereby avoid lowering the
prosecution’s burden of proof.
15
hearing, defense counsel said he was still working to gather relevant
transcripts and documents from the bail bondsman matter. The
court orally denied the first motion to recuse.
¶ 29
The judge sentenced codefendant Mason on April 2, 2013 (the
day after the hearing on the March 2013 recusal motion). Before
the sentencing, defense counsel for Mitchell voiced his concerns
that the case was attracting a large amount of publicity and that
reporters would be at the sentencing. Mason pleaded guilty to
conspiracy to commit robbery and accessory to a class 1 or 2 felony
and received six years in the Department of Corrections’ custody.
At Mason’s sentencing, the judge said the case was “one of the most
cold[-]blooded murders that have occurred in this county.” The
judge chided Mason: “You knew about the plan before the murder
occurred.”
¶ 30
After conducting further discovery, Mitchell renewed his
motion to recuse in August 2013, well before the February 2014
trial. In that motion, Mitchell argued recusal was required because
of (1) the judge’s “cold[-]blooded murder” comment during Mason’s
April 2013 sentencing; (2) the judge’s statement, in August 2012
16
while presiding over codefendant R.S.’s sentencing,9 “If Mr. Mitchell
ever sees the light of day, I’ll be extremely surprised. I know —
don’t know how — what’s going to happen, it’s not my case”;10 (3)
the judge’s prior representation of the bail bondsman; and (4) the
district attorney and the judge having worked together while
Benavidez’s prior revocations were pending. In the renewed motion
and at the hearing on the motion, defense counsel also stressed
that the “cold[-]blooded murder” comment was printed by the local
press in an April 2, 2013, newspaper article. The article — which
counsel identified as the newspaper’s most read story of the month
in raising concerns about pretrial publicity — elaborated,
“Prosecutors have identified Mitchell as a ringleader and
triggerman.”
¶ 31
On appeal, Mitchell reasserts the grounds for recusal from the
renewed August 2013 motion and adds that the judge’s erroneous
Because R.S. was a juvenile at the time, her case is sealed and our
record does not appear to detail her plea. What she pleaded to is
not expressly divulged in the briefs or her trial testimony — they
merely reference that she took a plea.
10 In 2012, the judge could not have known that he would be
assigned to Mitchell’s case.
9
17
rulings and comments throughout trial deprived Mitchell of his
right to a fair trial before an impartial and unbiased judge.11
B.
¶ 32
Judicial Bias and the Right to a Fair Trial
“A fair trial in a fair tribunal is a basic requirement of due
process.” In re Murchison, 349 U.S. 133, 136 (1955). The judge’s
impartiality is essential to affording the parties a fair trial.
Impartiality implicates freedom from bias, prejudice, and other
interests.12 “A court must be free of any bias, prejudice, or interest
directed toward any party or witness.” People v. Schupper, 2014
Examples of those rulings and comments include the following: in
front of the jury, cutting off Mitchell’s testimony in response to the
prosecution’s character evidence, see infra Part IV.B, stating, “I
don’t want [to hear] anymore about it”; commenting during an
evidentiary hearing on defense counsel’s motion regarding the
prosecution’s failure to preserve evidence (specifically, the location
of Benavidez’s butterfly knife at the crime scene) that “nothing in
your motion has panned out as true” and “if this were a civil case, I
would consider assessing attorney’s fees against you”; and giving
the prosecution forty-five days to provide discovery but allowing the
defense only thirty days.
12 “Bias implies a mental leaning in favor of or against someone or
something.” Donald C. Nugent, Judicial Bias, 42 Clev. St. L. Rev. 1,
2 n.5 (1994). Prejudice, however “implies a preconceived and
unreasonable judgment or opinion . . . marked by suspicion, fear,
intolerance, or hatred.” Id.; see also Deborah Goldberg et al., The
Best Defense: Why Elected Courts Should Lead Recusal Reform, 46
Washburn L.J. 503, 512 (2007) (stating that under common law,
recusal was required only when the judge had an interest in the
case; bias or prejudice were not grounds for recusal).
11
18
COA 80M, ¶ 57; see also Rippo v. Baker, 580 U.S. ___, ___, 137 S.
Ct. 905, 907 (2017) (“Recusal is required when, objectively
speaking, ‘the probability of actual bias on the part of the judge or
decision maker is too high to be constitutionally tolerable.’”)
(citation omitted).13
¶ 33
The Supreme Court has recognized situations where due
process requires a judge’s recusal from a case because of the
We asked the parties for supplemental briefing to discuss the
significance — under Rippo v. Baker, 580 U.S. ___, ___, 137 S. Ct.
905, 906 (2017), and Williams v. Pennsylvania, 579 U.S. ___, ___,
136 S. Ct. 1899, 1903 (2016) — of the distinction between actual
bias and an “appearance of partiality.” See People v. Dobler, 2015
COA 25, ¶ 25. Mitchell argues that Rippo and Williams eliminate
the distinction between “actual bias” and an “appearance of
partiality.” The People assert that Williams and Rippo are
inapplicable because Colorado state law applies here. We agree
that Colorado law controls our review of this issue. Because the
judge’s comments displayed an appearance of partiality, the judge
erred under state law in failing to recuse. See People v. Novotny,
2014 CO 18, ¶ 27 (reversal is required where there is an express,
legislative mandate); Smith v. Beckman, 683 P.2d 1214, 1216 (Colo.
App. 1984) (a judge must abide by the Code of Judicial Conduct
and statutory provisions governing disqualification); see also C.J.C.
2.11(A) (stating that a “judge shall disqualify himself . . . [when his]
impartiality might reasonably be questioned”). Thus, we need not
decide whether Rippo and Williams abrogated Colorado’s distinction
between actual bias and an appearance of partiality for purposes of
due process.
13
19
judge’s interest in the outcome.14 See Tumey v. Ohio, 273 U.S. 510,
523 (1927) (finding that the judge’s pecuniary interest in the
outcome of a case violated due process). But, the Supreme Court
has also observed that “[a]ll questions of judicial qualification may
not involve constitutional validity. Thus matters of kinship,
personal bias, state policy, [and] remoteness of interest” may be
subject to legislative discretion. Id. Of course, states may grant
their citizens greater rights than those secured by the Federal
Constitution. See, e.g., State v. McCabe, 383 So. 2d 380, 382 (La.
1980); Dorsey v. State, 466 A.2d 546, 549 (Md. Ct. Spec. App.
1983); People v. Seneca Ins. Co., 710 N.Y.S.2d 776, 780 (N.Y. Sup.
Ct. 2000); State v. Bode, 41 N.E.3d 1156, 1160 (Ohio 2015).
¶ 34
Unsurprisingly then, most states, including Colorado, have
passed statutes or judicial codes — and Congress has enacted a
The Supreme Court generally uses “recuse” to refer to a judge’s
removal of himself or herself from a case and “disqualify” to refer to
involuntary removal of a judge from a case, typically following a
motion pursuant to a statute or invoking the Due Process Clause.
See, e.g., Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 875
(2009) (“Justice Starcher urged Justice Benjamin to recuse
himself . . . . Caperton moved a third time for disqualification [of
Justice Benjamin] . . . .”).
14
20
federal statute — governing the recusal of judges.15 These statutes
and codes serve a dual purpose: affording due process of law and
fostering a public perception of judicial impartiality, which due
process may not require. It is not only actual impartiality — but
the appearance of impartiality — that lends legitimacy to the
judiciary. People v. Julien, 47 P.3d 1194, 1201 (Colo. 2002), as
modified on denial of reh’g (June 24, 2002) (Bender, J., dissenting)
(“A judge who is free of bias is a necessary prerequisite to
maintaining public confidence in the judicial system because
‘[j]udicial decisions rendered under circumstances suggesting bias
or favoritism tend to breed skepticism, undermine the integrity of
the courts, and generally thwart the principles upon which our
jurisprudential system is based.’” (quoting Richard E.
Flamm, Judicial Disqualification: Recusal and Disqualification of
Judges § 5.4.1, at 150 (1996))); see also Brewster v. Dist. Court, 811
P.2d 812, 814 (Colo. 1991); Amanda Frost, Keeping Up
Appearances: A Process-Oriented Approach to Judicial Recusal, 53 U.
See, e.g., Marie McManus Degnan, Comment, No Actual Bias
Needed: The Intersection of Due Process and Statutory Recusal, 83
Temp. L. Rev. 225, 227 n.20 (2010) (citing the federal statute and
the recusal laws of the states).
15
21
Kan. L. Rev. 531, 532 (2005) (observing that the judiciary derives its
legitimacy from its appearance of impartiality).
1.
¶ 35
The Appearance of Partiality Under Colorado Law
In Colorado, three guideposts govern judicial disqualification
in criminal cases: Colorado Rule of Criminal Procedure 21(b),
section 16-6-201, C.R.S. 2017, and Canon 2 of the Colorado Code
of Judicial Conduct. Schupper, ¶ 57; see also Smith v. Beckman,
683 P.2d 1214, 1216 (Colo. App. 1984) (noting that in addition to
the statutory provisions governing disqualification, a judge must
also abide by the Code of Judicial Conduct).16 Rule 21(b) and
section 16-2-201 similarly provide that a judge must recuse when
he “is in any way interested or prejudiced with respect to the case,
the parties, or counsel.”
¶ 36
And Canon 2 provides as follows:
A judge shall disqualify himself . . . in any
proceeding in which the judge’s impartiality
might reasonably be questioned, including but
not limited to the following circumstances . . .
[t]he judge has a personal bias or prejudice
concerning a party . . . or personal knowledge
of facts that are in dispute in the proceeding
In civil cases, Colorado Rule of Civil Procedure 97 comes into
play.
16
22
. . . [or] [t]he judge, while a judge or a judicial
candidate, has made a public statement, other
than in a court proceeding, judicial decision,
or opinion, that commits or appears to commit
the judge to reach a particular result or rule in
a particular way in the proceeding or
controversy.
C.J.C. 2.11(A)(1), (4) (emphasis added);17 Pearson v. Dist. Court, 924
P.2d 512, 516 (Colo. 1996) (“The generally accepted and
familiar meaning of ‘shall’ indicates that this term is mandatory.”);
People v. Dobler, 2015 COA 25, ¶ 9 (“[Rule 2.11] set[s] forth
Colorado standards by which a judge determines sua sponte or in
response to a motion whether to disqualify himself . . . from the
case.” (quoting Julien, 47 P.3d at 1197))); see C.J.C. 2.11 cmt. 1
(noting that the examples in Rule 2.11(A)(1)-(5) are not exclusive);
see also David v. City & Cty. of Denver, 837 F. Supp. 1094, 1096 (D.
Colo. 1993) (It is important to avoid “any appearance of impropriety
in developing and maintaining the public’s confidence in the
The Code of Judicial Conduct refers to “impartiality,” but several
cases relying on the code refer to the “appearance of impropriety,”
e.g., People in Interest of A.G., 262 P.3d 646, 650 (Colo. 2011)
(stating, after citing the judicial code that, “[i]n other words, a judge
must recuse whenever the judge’s involvement with a case might
create the appearance of impropriety”). Here, the terms are
similarly used interchangeably.
17
23
judiciary. Such an appearance in a case, even in the absence of an
actual showing of the same, is as damaging as the actual
impropriety or prejudice.”); Estep v. Hardeman, 705 P.2d 523, 526
(Colo. 1985) (disqualification is required when the facts support the
inference that the court’s impartiality might be questioned); Smith v.
Dist. Court, 629 P.2d 1055, 1056 (Colo. 1981); Wood Bros. Homes v.
City of Fort Collins, 670 P.2d 9, 10 (Colo. App. 1983) (relying on the
Code of Judicial Conduct and noting that, even absent evidence of
partiality, a situation creating the appearance of impropriety
precluded a judge from sitting on a case, thus requiring reversal
and a new trial before a different judge).
¶ 37
Judicial rulings alone are usually not sufficient to show bias
or prejudice, Schupper, ¶ 58, “unless they go so far as to show that
the judge has closed his or her mind about a case before all the
evidence has been presented,” Charles Gardner Geyh et al., Judicial
Conduct and Ethics 4-17 (5th ed. 2013) (collecting cases). Indeed, a
judge may form opinions and experience different emotions
throughout a trial, and a judge may even express disapproval of the
parties’ behavior, see, e.g., Creager v. State, 737 N.E.2d 771, 783
(Ind. Ct. App. 2000) (holding that, where a judge became emotional
24
during the defendant’s sentencing, recusal was not required), but
the lesson from Creager and other cases is that the judge may form
an impression of the defendant only based on the evidence from
that defendant’s trial. See, e.g., United States v. Barry, 961 F.2d
260, 263-65 (D.C. Cir. 1992) (holding that comments made by the
judge after defendant’s sentencing that were picked up by media
outlets and widely circulated did not require recusal on
resentencing).
2.
¶ 38
Evaluating Recusal Motions
The proper test for recusal based on appearance of impropriety
is whether the recusal motion sets forth facts that “create a
reasonable inference of a ‘bent of mind’ that will prevent the judge
from dealing fairly with the party seeking recusal.” Wright v. Dist.
Court, 731 P.2d 661, 664 (Colo. 1987); People v. Botham, 629 P.2d
589, 595 (Colo. 1981), superseded by rule on other grounds as
stated in People v. Garner, 806 P.2d 366 (Colo. 1991). “[T]he
appearance of impropriety is not lessened by the fact that the
litigation would have come out the same anyway.” Health Servs.
Acquisition Corp. v. Liljeberg, 796 F.2d 796, 801 (5th Cir. 1986),
aff’d, 486 U.S. 847 (1988).
25
¶ 39
Botham, 629 P.2d 589, a case involving a triple homicide,
largely mirrors this case. In Botham, the recusal motion and
affidavits averred that the judge said, in a conversation with a
public defender, “I know what I would do, I would put the guy in
jail, choke a confession out of him and charge him with the first
degree murders.” Id. at 594. The judge later denied the motion to
recuse after concluding it was untimely and the grounds were
legally insufficient because
(1) the affidavits did not in themselves allege
any belief on the part of the affiants that the
judge was prejudiced; (2) the judge’s remarks
could not have been directed towards the
defendant individually because the defendant
was not in custody at the time the remarks
were made; (3) the agency relationship between
the defendant and . . . the Colorado State
Public Defender, disqualified [the public
defender] from being a proper person to file an
affidavit in support of the motion; and (4) the
motion was conclusory[.]
Id. Our supreme court reversed the trial judge’s ruling and
remanded the case for a new trial before a different judge.
¶ 40
The Botham court held first that the motion was timely
because it was brought as soon as possible after defense counsel
discovered the facts that informed the basis of the motions. Id. at
26
595; see infra Part III.D. The court further held that the substance
of the motion was sufficient to require recusal because “[t]o be
legally sufficient, the motion and affidavits must state facts from
which it may reasonably be inferred that the judge has a bias or
prejudice that will prevent him from dealing fairly with the
defendant.” Botham, 629 P.2d at 595. The defendant’s motion, and
the supporting affidavits, “set[] forth that prior to the defendant’s
arrest, the trial judge made statements which reflect[ed]
predisposition as to the defendant’s guilt and prejudgment of the
case.” Id. at 595-96.
Having outlined the applicable law on judicial recusal, we
¶ 41
now discuss the preservation of Mitchell’s claims and our standard
of review.
C.
¶ 42
Preservation and Standard of Review
The People argue that Mitchell failed to preserve these issues
for our review by not contemporaneously objecting to the adverse
rulings now challenged. Regardless of the judge’s challenged trial
rulings, pretrial comments were the thrust of the recusal motions.
Because the judge was well aware of Mitchell’s concerns about not
receiving a fair trial, Mitchell’s recusal motions preserved his
27
objection. See, e.g., Camp Bird Colo., Inc. v. Bd. of Cty. Comm’rs,
215 P.3d 1277, 1289-90 (Colo. App. 2009) (“Once the trial court
makes definitive rulings either at or before trial, the objecting party
need not renew the objection contemporaneously during trial to
preserve a claim of error on appeal.”).
¶ 43
We review rulings on a motion to recuse de novo. Schupper,
¶ 56.
¶ 44
In ruling on a motion to recuse, the trial court is bound by the
four corners of the motion — including supporting affidavits — and
must accept all facts contained therein as true. Comiskey v. Dist.
Court, 926 P.2d 539, 542 (Colo. 1996); Klinck v. Dist. Court, 876
P.2d 1270, 1274-75 (Colo. 1994).18 The motion and affidavits are
The trial judge whose recusal is sought initially reviews the
motion to recuse. Then,
18
[i]f the verified motion and supporting
affidavits state facts showing grounds for
disqualification, the judge must enter an order
disqualifying himself. After disqualifying
himself, the judge may require a full hearing
upon the issues raised by the affidavits and
shall request that another judge conduct the
hearing. The other judge shall make findings
of fact with regard thereto, and such findings
28
considered legally sufficient where they “state facts from which it
may reasonably be inferred that the respondent judge has a bias or
prejudice that will in all probability prevent him or her from dealing
fairly with a party.” Comiskey, 926 P.2d at 542 (quoting People v.
Dist. Court, 898 P.2d 1058, 1061 (Colo. 1995)).
¶ 45
The judge is not to base his decision whether to recuse on his
own perception of the veracity of the facts contained in a motion to
recuse, even if the judge is convinced of his ability to remain
impartial or take issue with the facts alleged. Goebel v. Benton, 830
P.2d 995, 999 (Colo. 1992) (“[I]t is not the prerogative of the trial
judge to pass upon the truth or falsity of the sworn statements, but
rather it is the judge’s duty only to pass upon the legal sufficiency
of the factual averments in the affidavit.”); People in Interest of S.G.,
91 P.3d 443, 447 (Colo. App. 2004) (“The test of the sufficiency of a
motion to disqualify is whether the motion and required affidavit
state facts from which it may reasonably be inferred that the judge
shall be included as a part of the trial court
record.
§ 16-6-201(3), C.R.S. 2017.
29
harbors bias or prejudice that will prevent him or her from dealing
fairly with the party seeking recusal.”).
¶ 46
We now turn to the question of the recusal motions’
timeliness.
D.
¶ 47
Timeliness
Timeliness affects our review of Mitchell’s appearance of
partiality claim. Compare People v. Barton, 121 P.3d 224, 228
(Colo. App. 2004) (deciding that there was good cause for the late
filing and considering the appearance of partiality), overruled on
other grounds by Lopez v. People, 113 P.3d 713 (Colo. 2005), with
Dobler, ¶ 16 (noting that the failure to file a motion to recuse means
that we review for actual bias only and not for the appearance of
partiality).
¶ 48
The People assert that Mitchell’s recusal motions were
untimely under Colorado Rule of Criminal Procedure 21. Absent
good cause, “[a] recusal motion must be brought as soon as
defendant becomes aware of a basis for making such a motion.”
People v. Arledge, 938 P.2d 160, 166 (Colo. 1997) (citing Crim. P.
21(b) and section 16-6-201, C.R.S. 1986, which does not contain a
time limit for filing a recusal motion); Botham, 629 P.2d at 595
30
(applying a ten, not fourteen, day time limit and concluding that a
motion may nevertheless be accepted if the “application is made as
soon as possible after the occurrence or discovery of the facts which
form the basis for the motion for substitution.”). Contra People v.
Thoro Prods. Co., 45 P.3d 737, 747 (Colo. App. 2001) (denying a
motion to recuse when defense counsel informed the defendants of
counsel’s prior adverse relationship with the judge before counsel
was hired, but the motion to recuse was not filed until after the
judge denied several motions to dismiss), aff’d, 70 P.3d 1188 (Colo.
2003).
¶ 49
At the hearing on the first motion, defense counsel said that
he was still gathering facts relevant to the judge’s prior involvement
in the bail bondsman matter and had just become aware of the
judge’s prior working relationship with the district attorney. See
Johnson v. Dist. Court, 674 P.2d 952, 957 (Colo. 1984) (recognizing
that a request to disqualify a judge is a “most serious undertaking
which should not be pursued absent thorough factual
investigation”). In fact, defense counsel referenced the need to
locate transcripts of the bail bondsman proceeding and the judge’s
file from that case. Defense counsel learned in July 2013 that the
31
transcripts from that case had been destroyed. The comments
made during Mason’s sentencing occurred three months after the
judge’s assignment to Mitchell’s case but only one day after the
hearing on the first motion to recuse. The record does not explain
why a motion regarding the comments made at the 2012 sentencing
was not promptly filed upon the judge’s assignment to the case in
January 2013. Similarly, the record is silent on when Mitchell
learned of the 2012 comment.
¶ 50
But, the prosecution did not object to the timing of either
motion. Instead, the prosecution filed written responses addressing
the merits of both recusal motions. So, defense counsel had little
reason to address when possible grounds for recusal became
known, and the judge did not make findings on the timeliness
issue. Unlike in Botham, where the trial judge’s decision was based
in part on the motion’s untimeliness, 629 P.2d at 594, the
timeliness issue here was not raised before the trial court. See C.S.
v. People, 83 P.3d 627, 635 (Colo. 2004) (concluding that where the
district court made no findings on the excusable neglect of a late
filing and neither the guardian ad litem nor department objected to
the late filing, the question of whether the delay resulted from
32
excusable neglect was not properly preserved for appellate review).
Thus, we agree with the position Mitchell takes in his supplemental
brief. There is an insufficient record on the timeliness question for
us to review, and we need not decide the motions’ timeliness. See
People v. Salazar, 964 P.2d 502, 507 (Colo. 1998) (stating, where
the prosecution raised an issue for the first time on appeal, “[i]t is
axiomatic that issues not raised in or decided by a lower court will
not be addressed for the first time on appeal”); Santa Catalina
Townhomes, Inc. v. Mirza, 942 So. 2d 462, 463 (Fla. Dist. Ct. App.
2006) (reviewing a motion to recuse filed outside the statutory ten
day time limit because the trial court ruled on the merits of the
motion, not timeliness, so the issue of timeliness was not properly
before the court of appeals); see also United States v. Microsoft
Corp., 253 F.3d 34, 108 (D.C. Cir. 2001) (concluding that because
“the federal disqualification provisions reflect a strong federal policy
to preserve the actual and apparent impartiality of the federal
judiciary,” the court would consider a claim of judicial bias even
where no motion to recuse was filed at trial and the accounts of
what the judge told reporters were not in evidence).
33
E.
¶ 51
Analysis
To begin, the judge applied, in part, the wrong standard in
reviewing the motions to recuse. Rather than basing his decision
solely on the allegations contained within the four corners of the
motions and supporting affidavits, he evaluated the truth and
falsity of the facts alleged in light of his belief that he could remain
impartial. See Klinck, 876 P.2d at 1275. Regarding his
representation of the bail bondsman, the judge said, “I remember
nothing about this.” This was not the proper inquiry. See Julien,
47 P.3d at 1199 (“In ruling on the disqualification motion, a judge
must accept as true the factual statements contained in the motion
and affidavits.”); Botham, 629 P.2d at 594; see also People in
Interest of S.G., 91 P.3d at 447.
¶ 52
In denying the renewed motion to recuse, the judge said,
The personal beliefs of a judge as to the guilt
or innocence of a defendant in a criminal jury
trial is irrelevant to the issue of bias. The
judge, in evaluating the strength of a case
against a criminal defendant, does not become
prejudiced simply because the judge has made
that evaluation.
First, this statement is not absolute. See Watson v. Cal-Three, LLC,
254 P.3d 1189, 1192 (Colo. App. 2011) (“[A]n opinion as to the guilt
34
or innocence of a criminal defendant is generally not a basis for
disqualification.”) (emphasis added). Second, information the judge
received from sentencing codefendants, but having been assigned to
Mitchell’s case for only three months, would not necessarily provide
a complete basis to form an opinion on the case against Mitchell.
¶ 53
We reject the People’s assertion that the two challenged
comments cannot constitute judicial bias because they were not
based on an extrajudicial source. See C.J.C. 2.11(A)(4)
(disqualification required for extrajudicial comments “[if a judge]
while a judge . . . has made a public statement, other than in a
court proceeding, judicial decision, or opinion, that commits or
appears to commit the judge to reach a particular result or rule in a
particular way in the proceeding or controversy”); see also Barry,
961 F.2d at 263-65. But Canon 2’s language — “including but not
limited to” — creates a list that is open and non-restrictive. People
v. Roggow, 2013 CO 70, ¶ 20 (“The phrase ‘includes, but is not
limited to’ suggests an ‘expansion or enlargement’ and a ‘broader
interpretation.’” (quoting Ruff v. Indus. Claim Appeals Office, 218
P.3d 1109, 1113 (Colo. App. 2009))); see also C.J.C. 2.11 cmt. 1
(“[A] judge is disqualified whenever the judge’s impartiality might
35
reasonably be questioned, regardless of whether any of the specific
provisions of paragraphs (A)(1) through (5) apply.”).
¶ 54
Liteky v. United States, 510 U.S. 540, 554-55 (1994), instructs
that “neither the presence of an extrajudicial source necessarily
establishes bias, nor the absence of an extrajudicial source
necessarily precludes bias, [thus] it would be better to speak of the
existence of a significant (and often determinative) ‘extrajudicial
source’ factor, than of an ‘extrajudicial source’ doctrine, in recusal
jurisprudence.” See Nichols v. Alley, 71 F.3d 347, 351 (10th Cir.
1995) (interpreting Liteky to hold that “acquisition of alleged bias or
prejudice from [extrajudicial] sources is neither a necessary nor
sufficient condition for . . . recusal”). Here, the basis for the judge’s
comments came from information presented in Mason’s and R.S.’s
sentencings, but the comments reflected a potential bias against
Mitchell. In this scenario, the extrajudicial source factor yields to
the appearance of partiality caused by the judge seemingly
prejudging a case. See David, 837 F. Supp. at 1096; Creager, 737
N.E.2d at 783.
¶ 55
As in Botham, 629 P.2d at 594, where the judge, in reference
to the defendant, said he would “put the guy in jail, choke a
36
confession out of him and charge him with the first degree
murders,” the judge here described the crime as a “cold[-]blooded
murder” and said he would be surprised if Mitchell ever saw the
light of day again. The cold-blooded murder statement implies that
the judge believed Mitchell was guilty and he considered Mitchell to
have acted deliberately and without feeling. See People v. Dunlap,
975 P.2d 723, 764 (Colo. 1999) (post-verdict, describing the murder
as “cold-blooded executions”); Merriam-Webster Dictionary,
https://perma.cc/T9SZ-V9Z6 (defining cold-blooded as “(a) done or
acting without consideration, compunction, or clemency[;] coldblooded murder (b) matter-of-fact, emotionless”). This is analogous
to Botham, where our supreme court concluded that the judge’s
statement (made before the defendant was even arrested) “reflect[ed]
predisposition as to the defendant’s guilt and prejudgment of the
case” and required recusal. 629 P.2d at 595-96; see also Kersaint
v. State, 15 So. 3d 41, 42 (Fla. Dist. Ct. App. 2009) (“The
trial judge’s statement in this case would create a fear in the mind
of a litigant that the trial judge had prejudged the sentence to be
imposed. . . . [D]isqualification is required where a judge ‘has made
statements indicating that he or she has predetermined the
37
appropriate sentence . . . .’”) (citation omitted); People v. Cole, 84
N.W.2d 711, 720 (Mich. 1957) (reversing and remanding the case
for a new trial after concluding that the trial judge’s comments,
taken together, may well have created an atmosphere of prejudice
that deprived defendant of a fair trial and contributed to his
conviction); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App.
2006) (discussing a case where the reviewing court concluded that a
comment made during sentencing “in combination with the trial
court’s previous comments, showed that the trial court had
‘effectively decided the cases before listening to the evidence’”)
(citation omitted).
¶ 56
Preserving the appearance of impartiality can be especially
problematic where the same judge presides over multiple
codefendants’ trials or sentencings. “[A] trial court judge presiding
over the separate trials of two [co]defendants may not make a
statement expressing bias or prejudice about the second
[co]defendant during the earlier trial or sentencing of the first
[co]defendant.” People v. Cook, 22 P.3d 947, 951 (Colo. App. 2000).
Although Cook did not result in reversal, this case is
distinguishable from Cook. There, the judge’s comments about the
38
second codefendant in the first codefendant’s sentencing merely
reflected consideration of mitigating factors during the first
codefendant’s sentencing. Id. The court “expressly declined to find
that: (1) defendant was solely responsible for the murder and
robbery that had occurred, or (2) the [co]defendant committed the
crimes to which he pled guilty merely because the defendant ‘told
him to do it.’” Id.
¶ 57
Here, by contrast, calling a murder “cold[-]blooded” and
referring to “the plan before the murder” is not a discussion of
mitigating factors but of aggravating ones.19 And the People do not
direct us to record evidence showing that the judge attempted to
temper his comments as did the judge in Cook. See id. While the
judge’s comments appear to be based on information he learned in
sentencing the codefendants, they related to Mitchell’s culpability,
This case is also distinguishable from a situation where a judge
presided over a defendant’s sentencing only and, that same day,
sentenced four codefendants. United States v. Monaco, 852 F.2d
1143, 1146 (9th Cir. 1988). There, the defendant pleaded guilty, so
nothing the judge learned sentencing the codefendants could have
impaired the defendant’s ability to present his defense. Id.; see also
United States v. Barry, 961 F.2d 260, 263-65 (D.C. Cir. 2000)
(concluding there was no error because the judge’s publicized
comments were made after the defendant’s sentencing hearing).
19
39
not just that of the codefendants being sentenced, and so raised
questions about the judge’s impartiality. Wright, 731 P.2d at 664;
Botham, 629 P.2d at 595-96; see also Estep, 705 P.2d at 524.
¶ 58
Here, the judge said — after having been assigned to Mitchell’s
case for only three months and well before Mitchell’s trial even
began — that Benavidez’s murder was one of the county’s most
“cold[-]blooded” murders. While that statement did not directly
name Mitchell, the judge’s earlier comment, “If Mr. Mitchell ever
sees the light of day, I’ll be extremely surprised,” clearly identified
Mitchell and could suggest to the public that the judge had
predetermined Mitchell’s culpability. The cold-blooded murder
comment necessarily referenced Mitchell — one of the two
defendants who actually went into Benavidez’s house and admitted
having shot him. See Botham, 629 P.2d at 596 (concluding that it
was immaterial that the judge’s statement did not refer to the
defendant by name where the defendant was the only suspect at the
time of the statement and prior to his arrest, there was extensive
publicity about the case). And, Mitchell was the only defendant
who then faced a trial on murder charges. All of the other
participants, including Anglin, pleaded guilty to lesser charges.
40
Through motions on the admissibility of hearsay and CRE 404(b)
evidence filed throughout March 2013, and the hearing on April 1,
2013, the judge would have learned — at the time of Mason’s
sentencing (April 2, 2013) — that Mitchell would present an
affirmative defense of self-defense.
¶ 59
Further, the judge’s comment was printed in the local paper,
which created a risk of influencing the jury pool. Before Mason’s
sentencing, defense counsel expressed concerns that the pretrial
publicity had infected the venire in the small town and moved for a
change of venue. Aware of these concerns, the judge nevertheless
referenced the crime as a “cold[-]blooded murder” in open court. Cf.
Goss v. Nelson, 439 F.3d 621, 630-33 (10th Cir. 2006) (concluding
that the case did not generate “the corruptive and pervasive media
blitz the Supreme Court has required to presume prejudice” where
the judge, before being assigned to defendant’s case, commented “I
don’t see [the potential parolee] as the kind of guy who’s going to go
out and commit further acts of violence, but I didn’t see [defendant]
that way, either” and related newspaper articles were
“predominately factual and non-inflammatory”); Dewitz v. Emery,
508 N.W.2d 334, 337 (N.D. 1993) (“A trial judge should . . .
41
maintain at all times an impartial attitude in the trial of the case
over which he presides. He should not, by word, by question, by
his attitude, or by any conduct on his part, do anything which may
influence the jury in its consideration of the case.”) (citation
omitted); Flamm, § 5.3, at 110-11 (“Since an appearance of bias
may be just as damaging to public confidence in the administration
of justice as the actual presence of bias — particularly in a high
profile case — acts or conduct giving the appearance of bias should
generally be avoided in the same way as acts or conduct that
inexorably bespeak partiality.”) (footnotes omitted).
¶ 60
Appearing to prejudge the case in this way directly
undermined Mitchell’s affirmative defense of self-defense, which he
was entitled to litigate; Mitchell succeeds only if the fact finder
believes he “fear[ed] for his [or another’s] life.” People v. Gross, 2012
CO 60M, ¶ 15; English v. People, 178 Colo. 325, 331, 497 P.2d 691,
694 (1972) (“[T]o support the defense of self-defense, it must be
shown that the provocation or threat occurred immediately prior to
the homicide, and must be of such a character as to place the
accused in sudden fear of his life or in fear of great bodily injury.”).
Mitchell was then forced to proceed through an entire trial, where
42
he hoped to show that he acted reflexively and in fear to defend
himself and his friend, in front of a judge who had already publicly
expressed his view that Mitchell was a cold-blooded murderer.
¶ 61
In sum, the challenged comments at the two sentencing
hearings require retrial before a different judge. Botham, 629 P.2d
at 595-96, 603; see also Wells v. Del Norte Sch. Dist. C-7, 753 P.2d
770, 772-73 (Colo. App. 1987) (remanding for new proceedings
before a new hearing officer due to the appearance of impropriety in
the hearing officer having lunch with counsel and witnesses, even
though the contents of the lunch conversation were not in the
record); Williams v. Farmers Ins. Group, Inc., 720 P.2d 598, 600
(Colo. App. 1985) (holding that the trial court’s order should be
vacated — or a new trial held — where the judge had violated the
Code of Judicial Conduct). Here, the judge’s comments cast a
serious cloud on his impartiality and undermined Mitchell’s right to
a fair trial. Wright, 731 P.2d at 664; Dobler, ¶ 16; see also Cole, 84
N.W.2d at 720. If a new trial with a different judge is warranted
where a judge violates the Code of Judicial Conduct in a civil case,
Wood Bros. Homes, 670 P.2d at 10, it follows that a new trial with a
different judge is required in a criminal case where the judge failed
43
to abide by the same Code. The case is remanded for a new trial
before a different judge.
¶ 62
Thus, we need not address Mitchell’s other arguments for
recusal.
IV.
¶ 63
Evidentiary Issues
Mitchell raises several evidentiary issues. First, we address
his contentions concerning character evidence admitted under CRE
404(b), CRE 405, or as res gestae. Then, we address his arguments
on exclusion of his testimony that Benavidez invited him into the
house. In doing so, we recognize other grounds for reversal and
provide guidance on issues likely to arise at retrial.
A.
¶ 64
Standard of Review
We review evidentiary issues for an abuse of discretion. People
v. Quintana, 882 P.2d 1366, 1371 (Colo. 1994). An abuse of
discretion occurs when a trial court’s ruling is manifestly arbitrary,
unreasonable, or unfair, or if it misapplies the law. People v.
Relaford, 2016 COA 99, ¶ 25. “[I]t is incumbent upon the reviewing
court to investigate potential theories of admissibility that are either
argued on appeal or that were relied upon by the trial court in
44
admitting the evidence in question.” Quintana, 882 P.2d at 137172.
B.
¶ 65
Challenges to Admitted Evidence
Mitchell argues that the trial court erroneously admitted the
following character or res gestae evidence: (1) gun-related
allegations; (2) a prior homicide; (3) Mitchell’s alleged gang
affiliation; and (4) drug-related allegations. We agree it was error to
admit evidence of the prior homicide, Mitchell’s gang affiliation, and
drug-related allegations. The gun-related evidence was in part
improperly admitted. Collectively, because these errors made the
trial more about who Mitchell was than what he had done, they also
constitute grounds for reversal.
1.
Preservation and Applicable Law
¶ 66
The parties agree Mitchell preserved these issues.
¶ 67
Evidence must be relevant to be admissible. CRE 402.
“‘Relevant evidence’ means 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. But, relevant evidence may still
be excluded if “its probative value is substantially outweighed by
45
the danger of unfair prejudice.” CRE 403; see Yusem v. People, 210
P.3d 458, 465 (Colo. 2009) (holding that the probative value of
admitting evidence of a prior incident where defendant intimidated
an apartment manager was substantially outweighed by the danger
of unfair prejudice).
¶ 68
Res gestae evidence is “[e]vidence of other offenses or acts that
is not extrinsic to the offense charged, but rather, is part of the
criminal episode or transaction with which the defendant is
charged.” Quintana, 882 P.2d at 1373. Such evidence is “linked in
time and circumstances with the charged crime, forms an integral
and natural part of an account of a crime, or is necessary to
complete the story of the crime for the jury.” People v. Gee, 2015
COA 151, ¶ 28 (citation omitted). Res gestae evidence is admissible
if it is relevant and its probative value is not substantially
outweighed by the danger of unfair prejudice. Relaford, ¶ 61. Res
gestae evidence is not subject to Rule 404(b), which generally
governs the admissibility of evidence of a defendant’s other crimes,
wrongs, or acts that are extrinsic to the events charged. Gee, ¶ 27.
¶ 69
Evidence of a person’s other crimes, wrongs, or acts is
inadmissible if its relevance depends on an inference that the
46
person has a bad character and acted in conformity with that
character. CRE 404(b); see also People v. Spoto, 795 P.2d 1314,
1318 (Colo. 1990). However, evidence of prior bad acts is
admissible under Rule 404(b) if it is logically relevant for some
reason other than the prohibited propensity inference that the
defendant acted in conformity with a bad character trait. People v.
Rath, 44 P.3d 1033, 1038 (Colo. 2002). Under the Spoto test, (1)
the evidence must relate to a material fact; (2) the evidence must be
logically relevant by tending to make that material fact more or less
probable; (3) the evidence’s logical relevance must be independent
of the intermediate inference that the defendant committed the
crime charged because he acted in conformity with his bad
character; and (4) the probative value of the evidence may not be
substantially outweighed by the danger of unfair prejudice. Rath,
44 P.3d at 1038; Spoto, 795 P.2d at 1318. The prosecution must
articulate a precise evidentiary hypothesis by which a material fact
can be permissibly inferred from the prior act that is independent of
the propensity inference forbidden by Rule 404(b). Rath, 44 P.3d at
1039.
47
¶ 70
Otherwise inadmissible evidence may also come in through the
common law doctrine of “opening the door.” A party opens the door
to otherwise inadmissible evidence by presenting incomplete
evidence on a subject. See People v. Heredia-Cobos, 2017 COA 130,
¶ 20. The opponent may then inquire into the otherwise
inadmissible matter “to prevent one party in a criminal trial from
gaining and maintaining an unfair advantage by the selective
presentation of facts that, without being elaborated or placed in
context, create an incorrect or misleading impression.” Id. (quoting
People v. Murphy, 919 P.2d 191, 195 (Colo. 1996)).
¶ 71
Concerning self-defense, there must be “some evidence
showing that the victim, as the initial aggressor, used or threatened
the imminent use of unlawful physical force against the defendant.”
People v. Jones, 675 P.2d 9, 16 (Colo. 1984); see also § 18-1-704(1),
C.R.S. 2017. Accordingly, “[e]vidence of the victim’s character trait
for violence is legally relevant to the issue of self-defense,” subject to
threshold relevancy requirements. Jones, 675 P.2d at 16; see also
CRE 404(a)(2) (in a criminal case, evidence of a relevant character
trait of the victim offered by the accused can be admissible). Once a
defendant offers evidence of the victim’s tendency toward
48
aggressiveness or violence under Rule 404(a)(2), evidence of the
defendant’s character trait for aggressiveness or violence is also
admissible. CRE 404(a)(1).
¶ 72
Proof of a pertinent character trait is generally limited to
reputation or opinion testimony. CRE 405(a). But, evidence of
specific instances of conduct may be used to prove a pertinent
character trait that is an essential element of a charge, claim,
or defense. CRE 405(b).
To determine whether the character trait a
party seeks to prove is an essential element of
a charge, claim, or defense, the proper inquiry
is whether proof, or failure of proof, of
the character trait by itself actually satisfies an
element of the charge, claim, or defense. If
not, then character is not essential,
and evidence should be limited to opinion or
reputation.
People v. Miller, 981 P.2d 654, 658 (Colo. App. 1998); see Jones,
675 P.2d at 17.
¶ 73
Even so, evidence of specific instances of aggression or
violence is admissible under Rule 404(b) only if the evidence meets
the requirements of the four-part Spoto balancing test. Rath, 44
P.3d at 1038; see also United States v. Ellisor, 522 F.3d 1255, 1271
n.22 (11th Cir. 2008).
49
¶ 74
We now turn to Mitchell’s specific arguments.
2.
¶ 75
Gun-Related Evidence
Mitchell asserts that the trial court erred in admitting evidence
that he (1) had a reputation for carrying guns and (2) was known to
have traded drugs for guns, including the gun that he used to shoot
Benavidez. We disagree with Mitchell regarding his reputation for
carrying guns, but we agree the court erred in admitting evidence
that he allegedly traded drugs for guns.
a.
¶ 76
Reputation for Carrying Guns
Mitchell argues that evidence of his reputation for carryings
guns had no probative value apart from the prohibited propensity
inference, especially because he did not dispute carrying a gun to
Benavidez’s house and shooting at him. But, defense counsel
elicited testimony regarding Benavidez’s reputation for carrying
knives and guns to show his propensity for violence and to support
Mitchell’s self-defense claim. Thus, the prosecution could offer
rebuttal testimony regarding Mitchell’s similar reputation for
50
carrying guns.20 See Jones, 675 P.2d at 16. The prosecutor
established that Benavidez knew about Mitchell’s history of
violence, Mitchell had a reputation in the community as someone
who always carried a gun, and Mitchell owned guns.
b.
¶ 77
Trading Drugs for Guns
Mitchell also argues that evidence that he sometimes traded
drugs for guns had no probative value apart from the prohibited
propensity inference. The People respond that, in addition to being
part of Mitchell’s reputation for carrying guns, how Mitchell
acquired the gun he used to shoot Benavidez was relevant res
gestae evidence explaining the full context of the present crime. We
agree with Mitchell.
The People also argue that this was habit evidence admissible
under CRE 406. “[A] habit ‘denotes one’s regular response to a
repeated situation’ and ‘is the person’s regular practice of
responding to a particular kind of situation with a specific type of
conduct.’” 2 George E. Dix et al., McCormick on Evidence § 195, at
1080-81 (Kenneth S. Broun ed., 7th ed. 2013); see People v. Trujillo,
2015 COA 22, ¶ 13 (When the resident needed people to buy her
things, “her habit was to never give them her debit card.”). While
Mitchell testified that the drug business was dangerous and he had
to deal with dangerous people at every deal, it was Anglin, not
Mitchell, who testified that they had taken guns to previous drug
deals. Because we conclude that the evidence was otherwise
admissible, we need not resolve whether this was proper habit
evidence.
20
51
¶ 78
The probative value of evidence of Mitchell trading drugs for
guns was substantially outweighed by the danger of unfair
prejudice. See CRE 403. This evidence was not relevant as res
gestae because there was no dispute here that the transaction at
issue was exchanging $780 for marijuana, not trading guns for
other drugs. Ultimately, this evidence was not relavant; Mitchell
admitted he carried a gun to Benavidez’s house21 — so how he
acquired it is immaterial and not a fact of consequence. See CRE
401.
3.
¶ 79
Prior Homicide
Mitchell contends that the trial court erred in admitting
testimony concerning a prior homicide of a pizza deliveryman
allegedly committed by then-juvenile Mitchell. The People respond
that the trial court properly admitted this evidence because
Mitchell’s reputation for committing the crime was admitted. For
several reasons, we agree with Mitchell.
a.
¶ 80
Relevant Background
The trial court’s pertinent pretrial ruling provided:
In his opening brief, Mitchell’s counsel states that the
“uncontradicted evidence was that Mitchell always carried a gun.”
21
52
The district attorney argues that evidence of
the prior homicide is admissible under Spoto
because [Mitchell] may argue that the shooting
of the victim was accidental or in response to
the provocation of the victim. However, unless
and until [Mitchell] argues or presents
evidence of accident, self-defense or in some
other way opens the door that makes the
logical relevance of the prior homicide
independent of the intermediate inference that
[Mitchell] acted in conformity with his bad
character, the [c]ourt will not allow the district
attorney to present evidence of the prior
homicide.
¶ 81
The court also determined that Mitchell had committed the
prior homicide, finding in relevant part:
 “Weighing the entirety of the offer of proof concerning the
previous homicide, the [c]ourt finds that the evidence
that supports the conclusion that [Mitchell] committed
the homicide slightly outweighs the evidence that
supports the conclusion that [he] did [not] commit the
homicide.”
53
 “[T]he standard is preponderance of the evidence and the
[c]ourt finds that the district attorney has met that
burden.”22
¶ 82
At trial, the prosecution elicited testimony about the prior
homicide from three witnesses:
¶ 83
Kahlyn Fowler testified as follows:
[Prosecutor]: Did you pass on any
knowledge about a specific homicide
involving a pizza man?
[Fowler]: Yes.
[Prosecution]: Could you explain to the
jury what you told Joey [Benavidez]?
[Fowler]: . . . [Mitchell’s] nickname is
Pizza Boy Killer, so I told Joey that, you
know, that’s the little kid that killed the
pizza boy. So Joey’s like, that’s cool.
Like, he didn’t act scared or anything
about it, just shrugged his shoulders
about the situation.
[Prosecution]: And are you positive that
he knew that?
While we do not decide the issue on this basis, the judge appears
to have applied the wrong standard — stating at one point
“additional evidence . . . weakens a probable cause finding.” See
infra Part IV.B.3.b.ii. The proper standard is a preponderance of
the evidence, not probable cause. People v. Garner, 806 P.2d 366,
371 (Colo. 1991).
22
54
[Fowler]: I’m positive, yeah.
[Prosecution]: And is that Tommy
Mitchell’s reputation around Farmington
and around the group of people that you
associate with and he associates with?
[Fowler]: I guess the ones I associate
with.
During redirect, the prosecution further questioned Fowler on the
homicide:
[Prosecution]: And did [Benavidez] act like
he was a man of steel after you told him
about Mr. Mitchell killing the pizza man?
[Fowler]: He just shrugged his shoulders
like he wasn’t going to judge [Mitchell].
¶ 84
Delando Henry also testified:
[Prosecution]: Were you aware of Tommy
Mitchell killing someone before?
[Henry]: No, just hearsay.
[Prosecutor]: Do you remember saying [in
your interview] “It’s not his first person
he killed.”
55
[Henry]: No, I told him that he was
involved in a pizza man killing. His name
was brought up, but that was it.23
¶ 85
And Jeremiah Mason testified:
[Prosecution]: Did he tell you about
shooting the pizza man?
[Mason]: Allegedly not. I just heard about it
when I was a juvie.
[Prosecutor]: Let’s go back to the
interview. Did you tell the detectives “He
told me that he actually did shoot the
pizza man and, you know, supposedly the
pizza man threw the pizza box at him or
something and he shot him.” Does that
sound accurate?
[Mason]: Yes, that was accurate, that’s
what I said.
[Prosecutor]: Is that what [Mitchell] told
you?
[Mason]: Yeah.
¶ 86
Finally, the prosecution offered evidence of a recorded jail
phone call from Mitchell to R.S. where Mitchell said, “Premeditated,
On cross-examination, defense counsel also questioned Delando
Henry on the prior homicide in an attempt to impeach his
credibility on his knowledge of the prior act. See CRE 608(b).
23
56
that’s what they tried to get me for last time with the pizza man.
They said it was premeditated because you got to call the pizza man
to get him to come, that’s premeditation.”
¶ 87
Mitchell offered evidence of Benavidez’s reputation for violence
and carrying weapons, after the court indicated before trial that it
would allow such evidence and after the prosecution brought in the
prior homicide24:
The People argue that Mitchell opened the door to testimony on
the prior homicide. But, the testimony on (1) Benavidez’s skill with
a butterfly knife and (2) the fact that Benavidez and Mitchell carried
weapons, after defense counsel asked “that’s why [Mitchell] carries
a gun, too, is for self-preservation,” relates more to the question
addressed above, see supra Part IV.B.2.a — carrying guns — than it
does to the prior homicide. The specific character trait defense
counsel asked about was Benavidez’s untruthfulness.
Defense counsel later asked Fowler if he knew whether
Benavidez had shot anyone. But, this was on cross-examination
and after Fowler had already testified on direct about Mitchell’s
alleged involvement in the prior homicide.
The People also argue that Mitchell opened the door through
counsel’s opening statement. See People v. Heredia-Cobos, 2017
COA 130, ¶ 22 n.2 (“[O]ther divisions of this court have held that
defense counsel’s remarks in opening statement may open the door
to otherwise inadmissible evidence.”); see also People v. Pernell,
2014 COA 157, ¶ 40, aff’d on other grounds, 2018 CO 13; People v.
Davis, 312 P.3d 193, 196-97 (Colo. App. 2010), aff’d on other
grounds, 2013 CO 57. The supreme court’s recent decision in
Pernell v. People, 2018 CO 13, ultimately did not address the issue.
¶ 29 (“We decline to address whether defense counsel’s opening
statement opened the door to the admission of the ex-wife’s out-of24
57
[Defense Counsel]: Now, [Benavidez] also had a
reputation for owning and selling firearms,
didn’t he?
[Officer]: Yes. . . .
[Defense Counsel]: He went to great lengths to
portray himself as to be kind of a badass,
right?
[Officer]: That was an opinion that I had
developed, yes.
And from a second witness:
[Defense Counsel]: You know other people
that knew Joey Benavidez, right?
[Witness]: Yes.
[Defense Counsel]: Did he have a reputation
for being violent?
[Witness]: Yes.
This evidence was introduced to demonstrate that Mitchell
reasonably believed deadly force was necessary to defend himself
and Anglin against Benavidez’s drawn butterfly knife. See Jones,
675 P.2d at 16; Miller, 981 P.2d at 658.
court statements and express no opinion on this issue.”). Given the
trial court’s pretrial ruling admitting evidence of the prior homicide,
we need not address the People’s argument that defense counsel
opened the door.
58
b.
¶ 88
Analysis
First, we address whether the challenged evidence was
admitted in error under Rule 404(a)(2) and Rule 405(a) and (b).
Then, we consider Mitchell’s argument that the record does not
support the finding that Mitchell committed the prior homicide by a
preponderance of the evidence. Thus, we need not decide whether
Mitchell opened the door to this testimony, see supra note 24,
because, even if he did, specific prior bad acts evidence would still
have to meet Rule 404(b) requirements.
i.
¶ 89
Rule 404(a)(2), Rule 405(a), and Rule 405(b) Testimony
Because Mitchell elicited testimony on Benavidez’s reputation
for often carrying knives or guns, the prosecutor could rebut with
reputation or opinion evidence on Mitchell’s similar character traits.
CRE 404(a)(1); Miller, 981 P.2d at 658; see supra Part IV.B.1.
Reputation evidence may be shown only through a defendant’s
reputation in the community. United States v. Reed, 700 F.2d 638,
645 (11th Cir. 1983); see also Ellisor, 522 F.3d at 1271 n.22
(“Specific instances of conduct are inadmissible as character
evidence . . . .”). Here, however, the prosecution’s questions related
to a specific incident — Mitchell’s alleged prior involvement with the
59
pizza deliveryman’s homicide — rather than Mitchell’s general
reputation for violence in the community.25 The prosecution elicited
testimony of the prior homicide on the first day of trial and
emphasized it at various points during trial. Thus, even without
addressing the evidence’s prejudicial impact, it was error to admit
evidence of the prior homicide.
¶ 90
Still, where a defendant has actual knowledge of a victim’s
specific prior acts of violence, those prior acts can be admissible as
“direct evidence of an essential element of self-defense, namely, the
reasonableness of the defendant’s belief in the imminent use of
unlawful physical force against him.” Jones, 675 P.2d at 17; see
also CRE 405(b). The People point to no case holding that the
inverse is true: where the victim had knowledge of the defendant’s
specific prior bad acts, the prosecution can admit those prior acts
to negate an essential element of self-defense. The People were able
to sufficiently develop Mitchell’s reputation for aggression or
The prosecution separately asked about Mitchell’s reputation in
the community, including questions to Mitchell’s cousin Shanice
Smith.
25
60
violence — including carrying guns — without reference to the prior
homicide.
¶ 91
Even so, inadmissibility under Rule 404(a)(2) and Rule 405(a)
and (b) does not resolve admissibility under Rule 404(b) —
applicable here because the prosecutor elicited testimony on a
particular prior bad act.
ii.
¶ 92
Rule 404(b)
Before admitting prior crimes or other acts evidence, the trial
court must determine by a preponderance of the evidence that the
other crime occurred and that the defendant committed the other
crime. Garner, 806 P.2d at 371. “A fact is established by a
preponderance of the evidence when, upon consideration of all the
evidence, the existence of that fact is more probable than its
nonexistence.” Id. at 370. We review a trial court’s determination
on this point for an abuse of discretion and will not disturb the trial
court’s ruling unless it is manifestly arbitrary, unreasonable, or
unfair. People v. Davis, 218 P.3d 718, 727 (Colo. App. 2008); People
v. Groves, 854 P.2d 1310, 1313 (Colo. App. 1992).
¶ 93
At Mitchell’s juvenile change of plea and sentencing hearing on
the prior homicide, the juvenile judge said, in relevant part:
61
 “I didn’t believe the case was strong at that point.”
 “[T]he [c]ourt is aware too there’s DNA testing in this
case which resulted in no showings that . . . Mr. Mitchell
was in any way involved in this offense. We also had
fingerprint testing which actually showed fingerprints of
someone else on the murder weapon. . . . DNA showed
someone else’s DNA on the murder weapon and Mr.
Mitchell’s [DNA] was not on the murder weapon.”
 “[T]his is the type of case that could have easily resulted
in a not guilty, finding of not guilty or a hung jury as
indicated.”
¶ 94
In light of this and other record evidence the trial court heard,
we cannot conclude that the existence of the fact (Mitchell
committed the prior homicide) is more probable than its
nonexistence. See Garner, 806 P.2d at 370. For example, the
juvenile judge determined that the forensic evidence indicated
Mitchell had not committed the homicide, one of the witnesses
against Mitchell was highly unreliable, and Mitchell — then sixteen
years old — took a no contest guilty plea and sentence of two years
of probation to avoid any possibility of a life sentence. Thus, in
62
addition to not being proper rebuttal testimony under Rules
404(a)(2), 405(a), and 405(b), the evidence was also inadmissible
under Rule 404(b), and the trial court abused its discretion in
admitting it. See Davis, 218 P.3d at 727; Groves, 854 P.2d at 1313.
¶ 95
Although Mitchell admitted during his direct testimony to
having bragged about the prior homicide, this was long after the
topic of the prior homicide had been improperly admitted —
through three witnesses and a recording. Further, attempts by
Mitchell’s counsel to minimize the impact — for instance, he could
have called Mitchell’s juvenile attorney to testify that Mitchell’s DNA
did not match the DNA on the weapon — would have been futile
because the prejudicial impact of the prosecution’s evidence
substantially outweighed any probative value. See Spoto, 795 P.2d
at 1318; see also Danko v. Conyers, 2018 COA 14, ¶ 50 (allowing a
“trial within a trial” can prejudice and confuse the jury as to the
relevant, actual issue in a case). Here, even assuming relevance
63
under Rule 401, evidence of the unrelated incident was simply too
prejudicial to be admitted.26 See CRE 403;Yusem, 210 P.3d at 465.
4.
¶ 96
Gang Membership
Mitchell next argues that the trial court erred in admitting
evidence of Mitchell’s alleged gang affiliation as evidence “relevant to
the manner in which the burglary, robbery, and homicide are
alleged to have been committed, i.e., the scheming and planning of
the alleged offense.” We agree.
a.
¶ 97
Relevant Background
Mitchell’s alleged gang affiliation was referenced multiple times
during the prosecution’s case.
¶ 98
First through Anglin’s testimony:
[Prosecutor]: Let’s talk about a little
terminology, just clarify things for some people
who may not understand. What’s a Crip?
[Anglin]: Westside gang member.
[Prosecutor]: Is that a gang reference?
Given our conclusion here, we need not separately address
Mitchell’s argument regarding the propriety of jury instruction 21.
Because it was error to allow in evidence of prior bad acts, it would
be error on remand to give a similar instruction on how the jury
may consider prior bad acts.
26
64
[Anglin]: Yeah. . . .
[Prosecutor]: Tell me about this jacket. Was
that something that [Mitchell] was proud of?
[Anglin]: Yep.
[Prosecutor]: Why was that?
[Anglin]: Because it was his colors.
[Prosecutor]: What does that mean, “his
colors?”
[Anglin]: His gang colors.
[Prosecutor]: What’s the significance of the
blue bandanna?
[Anglin]: Same thing.
¶ 99
Then, through Henry’s testimony:
[Prosecutor]: During that interview, April 2012,
do you remember [a deputy] asking you, “What
was [Mitchell],” and your responding,
“[Mitchell’s] a Rolling 40?”
[Henry]: Everybody knew him as a Rolling 40,
everybody knew me as a Norteno.
¶ 100
And finally through Smith’s testimony:
[Prosecutor]: Was Mr. Mitchell a member of a
gang?
[Smith]: Yes.
[Prosecutor]: What gang was that?
[Smith]: Westside Neighborhood 40 Crips.
65
b.
¶ 101
Analysis
Evidence of a defendant’s membership in a gang may be
“admissible to explain his conduct in the criminal episode.” People
v. Martinez, 24 P.3d 629, 633 (Colo. App. 2000). Evidence of a
defendant’s membership in a gang can also be admissible as either
Rule 404(b) evidence — to prove motive, for example — or as res
gestae evidence — “to explain a defendant’s conduct in a criminal
episode in which gang members acted in concert with one another.”
People v. Trujillo, 2014 COA 72, ¶ 57. But regardless of the theory
of admissibility, evidence of a defendant’s gang affiliation — like all
evidence — must be relevant under Rule 401.
¶ 102
While the People argue that the challenged evidence showed
that Mitchell’s bringing friends and guns in a backup car indicates
there was a plan to use force against Benavidez, they fail to connect
Mitchell’s gang affiliation to the way in which he allegedly planned
to use force. Assuming that Mitchell was affiliated with a gang, the
record does not indicate that (1) Benavidez was a rival gang
member; (2) the friends Mitchell brought to the crime scene were
affiliated with any gang; (3) the drugs or expected drug profits were
connected to gang activity; or (4) the underlying criminal episode
66
had anything to do with gangs besides Mitchell’s alleged, incidental
gang affiliation.
¶ 103
Testimony about Mitchell’s preferred clothing color does not
show he had a premeditated plan to use force against Benavidez.
Likewise, the evidence of Mitchell’s gang affiliation does not make it
more likely that Mitchell committed acts establishing the elements
of robbery, because the prosecution elicited no evidence that these
crimes were in anyway related to how a particular gang, much less
Mitchell’s gang, committed similar crimes.
¶ 104
Only a single, unanswered text message to Mitchell from his
cousin Shanice Smith the day the shooting took place supports the
People’s position: “After we do this am i truley [sic] gonna be from
forties cuz.” This statement is easily distinguishable from evidence
of gang membership admitted as Rule 404(b) or res gestae evidence
in other cases. For example, there was no indication that Mitchell’s
membership in a gang made him more likely to kill Benavidez. See,
e.g., People v. Clark, 2015 COA 44, ¶ 32 (holding that evidence of
the defendant’s gang membership was relevant where it showed the
defendant’s motive stemmed from the “code of respect” and the
victim insulted certain gang members, thereby insulting all
67
members); People v. Mendoza, 876 P.2d 98, 103 (Colo. App. 1994)
(“[T]he fact of the defendant’s gang affiliation could have shown a
motive to commit the crime.”). Because Smith first mentioned gang
activity or membership and Mitchell did not respond, at most, the
text message showed Smith’s reasons for being involved in the
episode, not Mitchell’s.27
¶ 105
If Smith’s involvement was an “intermediate or evidentiary
fact” that is “probative of ultimate facts” (i.e., evidence Mitchell
committed the crime or evidence of his intent or deliberation), see
Clark, ¶ 31, the text message could pass prong one of the Spoto
test. But, as noted above, the text message is not so probative that
it allows delving into Mitchell’s gang membership. Cf. Martinez, 24
P.3d at 633 (“Indeed, it would probably not be possible to tell the
story of these events without referring to the relationship among the
actors, who were all members of the gang.”).
¶ 106
While evidentiary issues are often a matter of weight rather
than admissibility, here “the linkage to gangs served no purpose but
to suggest that the defendant[], because [he was a] gang member[],
Smith pleaded guilty to charges stemming from her involvement,
so her motives were no longer in issue during Mitchell’s trial.
27
68
had a propensity to commit criminal acts.” Mendoza, 876 P.2d at
103. Thus, evidence of Mitchell’s gang membership does not pass
the third or fourth prongs of the Spoto test, nor is it relevant res
gestae evidence because it is not “part and parcel” of the criminal
episode or necessary to explain it. See Martinez, 24 P.3d at 633.
¶ 107
Also, we reject the People’s argument that Mitchell opened the
door to this testimony through questions about Benavidez’s gang
membership, such as, “‘Did you know he’s in a gang?’. . . [Fowler]:
‘Actively, I guess, yes. I know he’s in a gang from when he was in
Sacramento, that’s it.’” We are not persuaded because (1) the trial
court’s pretrial ruling independently allowed the prosecution to
bring in the evidence and (2) these questions occurred two days
after the prosecution had discussed Mitchell’s gang affiliation. That
Benavidez was also implicated as having gang affiliations does not
alter the analysis. This was a dispute over the sale and delivery of
marijuana for $780 between two men, not between rival gangs.
5.
¶ 108
Drug-Related Evidence
Mitchell next argues the court erred in allowing testimony that
Mitchell allegedly sold drugs other than marijuana. Because the
evidence had no relevance here, again, we agree.
69
¶ 109
The People argue, and the trial court’s pretrial ruling
concluded, that this evidence was relevant to show Mitchell’s
“motive, intent and that he acted after deliberation.” Specifically,
the People contend that (1) this evidence is res gestae evidence
concerning Mitchell’s relationship with Benavidez and Anglin and
(2) it shows Mitchell had a plan to take Benavidez’s phone to
expand his drug selling operations. We are not persuaded.
¶ 110
First, there was no dispute at trial that Mitchell and Anglin
went to Benavidez’s house to conduct a marijuana transaction. No
other res gestae evidence was needed to set the stage for the jury.
See Gee, ¶ 28. Anglin’s testimony that he would sometimes drive
Mitchell in exchange for cocaine and his testimony on the effects of
methamphetamine did not have any tendency to make the existence
of a fact of consequence more probable or less probable than it
would be without the evidence. See CRE 401.
¶ 111
Next, even if Mitchell planned to take Benavidez’s phone, the
prosecution could have presented that theory through evidence of
Mitchell’s marijuana sales. If, as the People state in their answer
brief, the focus was on Mitchell’s “motive and intent, rather than
any particular substances he trafficked,” then testimony on other
70
substances was not relevant under Rule 401. Thus, the court erred
in admitting testimony of Mitchell’s selling drugs other than
marijuana.
6.
¶ 112
Reversible Error
Where, as here, evidentiary errors have been preserved,
reversal is required only if the errors, individually or collectively,
were not harmless. Nicholls v. People, 2017 CO 71, ¶ 17. The
harmless error analysis requires “an inquiry into whether, viewing
the evidence as a whole, the contested evidence substantially
influenced the verdict or affected the fairness of the trial
proceedings.” People v. Summitt, 132 P.3d 320, 327 (Colo. 2006).
¶ 113
Without the evidence that we have held was improperly
admitted, the jury would have weighed Mitchell’s self-defense
assertion knowing that he and Benavidez were small-time
marijuana dealers, they usually carried weapons, and both were
armed on the day of the shooting. But the improperly admitted
evidence added to the jury’s perspective that Mitchell dealt multiple
types of drugs, traded drugs for guns — including one of the
weapons used in the shooting — belonged to a gang, and had
already killed someone else. The prosecutor’s opening statement
71
and closing argument made certain that the jury would see Mitchell
through this lens.
¶ 114
As well, the evidence of guilt was not overwhelming. After all,
Benavidez was the first to display a deadly weapon.
¶ 115
For these reasons, we further conclude that even if the judge
properly denied both motions to recuse, because collectively these
evidentiary errors were not harmless, see Nicholls, ¶ 17, Mitchell
would be entitled to a new trial.28
C.
¶ 116
Other Evidentiary Issues
Mitchell argues that the trial court erred in excluding his
testimony that Benavidez invited him to his house. We agree.
However, because Anglin testified that Benavidez had invited them
both in, which defense counsel pointed out in closing argument, we
cannot say that this error also requires reversal.
While we do not separately address Mitchell’s hearsay arguments
(apart from Benavidez’a invitation), see infra Part V, to the extent
admission of any hearsay related to the character evidence is
sought on remand — for example testimony from Henry or Fowler
regarding the prior homicide — it must necessarily be excluded.
28
72
1.
¶ 117
Preservation
The People agree that Mitchell preserved the issue as a
hearsay objection but not on constitutional grounds. Because
remand for a new trial is already required, we need not resolve the
parties’ disagreement on the preservation question because it would
affect only the reversibility standard, not whether error occurred.
See also People v. Carian, 2017 COA 106, ¶ 41 (“[E]videntiary
rulings are subject to the nonconstitutional harmless error
standard.”).
2.
¶ 118
Law and Analysis
Hearsay is a statement other than one made by the declarant,
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. CRE 801(c). Hearsay is not
admissible unless it meets an exception articulated by rule or
statute. CRE 802. A statement that might otherwise be considered
hearsay may also be admissible if it is offered for a non-hearsay
purpose. As relevant here, “if an out-of-court statement is offered
solely to show its effect on the listener, it is not offered to prove the
truth of the matter asserted and is not hearsay.” People v. Phillips,
2012 COA 176, ¶ 107; see, e.g., People v. Robinson, 226 P.3d 1145,
73
1151 (Colo. App. 2009) (statement offered to show why police acted
as they did is not hearsay).
¶ 119
At trial, the following colloquy occurred:
[Defense Counsel]: And you’re also talking to
Benavidez, right, on the telephone?
[Mitchell]: Yes, sir.
[Defense Counsel]: And he never said to you
“Don’t come to my house,” right?
[Mitchell]: No.
[Defense Counsel]: He invited you to come to
his house.
[Mitchell]: Yes, sir.
[Prosecutor]: Objection, Judge. It’s hearsay
again.
[Defense Counsel]: It goes to the —
[Prosecutor]: There’s no evidence that that was
said by Joey Benavidez. You know, it’s an outof-court statement offered for the truth of the
matter asserted. That is hearsay.
[Defense Counsel]: Still goes to Mr. Mitchell’s
state of mind, Judge, it’s not hearsay.
[The Court]: Well, just because something goes
to your state of mind doesn’t mean it’s not
hearsay. I’m going to sustain the objection
and the jury’s to disregard the answer.
74
¶ 120
Although defense counsel muddied the waters by responding
to the prosecution’s hearsay objection relying upon Rule 803(3)
(hearsay exception for the declarant’s state of mind), counsel also
pointed to Mitchell’s state of mind and asserted that this answer
was “not hearsay”; on appeal, Mitchell clearly asserts that this
statement should have been allowed for its effect on the listener.
See Quintana, 882 P.2d at 1371-72.29 On remand, this testimony
should be allowed.
The older cases Mitchell cites use the phrase “state of mind” to
describe what is essentially effect on the listener as non-hearsay.
E.g., People v. Burress, 183 Colo. 146, 151, 515 P.2d 460, 463
(1973) (“It has long been the law that when a hearsay statement is
offered to provide the basis for a defendant’s state of mind, the
truth of the statement is not the criterion for admission, and the
general hearsay prohibition does not apply.”); People v. Green, 38
Colo. App. 165, 166, 553 P.2d 839, 840 (1976) (“The People concede
in our court that the testimony should have been admitted since it
was offered to prove defendant’s state of mind or intent, and was
not offered to prove the truth of the matter asserted.”). Under the
modern evidence rules in Colorado, the state of mind hearsay
exception, CRE 803(3), applies only to the declarant’s state of mind.
Cf. People v. Spring, 713 P.2d 865, 879 (Colo. 1985) (“Out-of-court
statements offered not to prove the truth of the matter asserted but
offered because they tend to explain the state of mind of someone
other than the declarant are not hearsay and should be admitted if
relevant.”), rev’d on other grounds, 479 U.S. 564 (1987). Nonhearsay effect on the listener is used when the statement is offered
“to prove something other than its truth. . . . One example is when
the statement is offered to . . . explain the listener’s later actions.”
29
75
¶ 121
A person commits burglary if he “knowingly enters unlawfully
. . . a building or occupied structure.” § 18-4-202(1), C.R.S. 2017.
Thus, whether Mitchell went into Benavidez’s house believing he
was invited is directly relevant to the knowledge element of the
charged crime.30 See State v. Crocker, 435 A.2d 1109, 1111 (Me.
1981) (holding that in a burglary prosecution, the trial court
erroneously excluded relevant, non-hearsay evidence that “went to
the issue of whether the defendant knew he did not have a license
or privilege to enter the [victim’s] house”). We conclude that
Benavidez’s statement to Mitchell was admissible for the nonhearsay purpose of showing its effect on Mitchell as the listener, in
that he allegedly went into Benavidez’s house believing he had been
invited. Phillips, ¶ 107 (“[T]he statement may be offered simply to
demonstrate it was made, to explain subsequent actions by the
People v. Abu-Nantambu-El, 2017 COA 154, ¶ 160 (Webb, J.,
dissenting).
30 Burglary can also be committed if a person “remains unlawfully
after a lawful or unlawful entry,” but this element relates to whether
Benavidez rescinded his invitation by pulling his knife. § 18-4202(1). That the evidence was defendant’s testimony is “simply a
factor for the jury to consider in deciding what weight to give that
[evidence].” Spring, 713 P.2d at 880.
76
listener, or to show notice or knowledge of the listener.” (quoting
McElroy v. State, 637 N.W.2d 488, 501 (Iowa 2001))).
¶ 122
The People respond that Anglin’s testimony sufficiently showed
whether Anglin and Mitchell believed they were invited into
Benavidez’s home.31 But, Anglin testified as a prosecution witness,
and his belief does not prove Mitchell’s belief. A defendant must be
able to “tell his version of the events,” especially where the
“defendant was effectively the only witness available to present this
evidence.” People v. McGrath, 793 P.2d 664, 667 (Colo. App. 1989);
see also Crocker, 435 A.2d at 1111 (“Refusal to allow the defendant
to testify as to his state of mind at the time of the alleged
commission of the crime, ‘is tantamount to depriving the defendant
of an opportunity to make any defense at all.’”) (citation omitted).
“Nor is [the] defendant’s testimony barred because the victim is not
available for cross-examination on the alleged plan. The Sixth
Amendment right of confrontation applies only to the accused and
not to the People.” McGrath, 793 P.2d at 667. On remand, the trial
court should not exclude this evidence if properly presented.
On cross-examination defense counsel asked, “[Benavidez] invited
you guys into the house, right?” Anglin answered, “Yeah.”
31
77
V.
¶ 123
Remaining Issues Raised on Appeal
Mitchell argues that is was error to give jury instruction 19 on
defense of premises. We agree. This instruction likely confused the
jury. A defense of premises instruction is given to explain a
defendant’s action of using self-defense to protect his home. See
§ 18-1-705, C.R.S. 2017; People v. Toler, 9 P.3d 341, 352 (Colo.
2000) (“[A] person in possession or control of any building or
premises may lawfully use reasonable force, including deadly force
in some instances, against trespassers.”). Here, it seemed to be
used to explain Benavidez’s action of pulling out his butterfly knife
as defending his home against Mitchell and Anglin. Yet, the
People’s argument is that Mitchell was the initial aggressor or that
he provoked Benavidez, not that he was a trespasser. Thus, this
was not the proper question for the jury to consider and confused
the issues by inquiring into the victim’s, not the defendant’s,
actions. See People v. Jones, 2018 COA 112, ¶ 43 (“The [erroneous
make-my-day] instruction’s effect — and, presumably, its purpose
— was to give the homeowners the exclusive right to self-defense
78
and thereby negate any such claims by [the defendant].”).32 On
remand, a defense of premises instruction should not be given.
¶ 124
Finally, we need not address the remaining issues Mitchell
raises on appeal because they are mooted by reversal and remand
or are unlikely to recur on remand: denial of Mitchell’s mistrial
motions; Mitchell’s right to present a defense and testify on the
evidence of guns, gangs, drugs, and his bragging about the prior
homicide; admission of other hearsay evidence; restrictions on
cross-examination; prosecutorial misconduct; cumulative error; and
double jeopardy.
VI.
¶ 125
Conclusion
Because of the judge’s failure to recuse, despite having made
comments creating an appearance of partiality, and the erroneously
admitted bad character evidence, Mitchell’s convictions are reversed
and the case is remanded for a new trial before a different judge.
JUDGE WEBB and JUDGE RICHMAN concur.
Because we conclude that here instruction 19 was improperly
given because it pertained to Benavidez’s actions not Mitchell’s, we
need not address the specific impact of the holding in People v.
Jones, 2018 COA 112, ¶ 50 (error to give make-my-day instruction
that failed to require a “knowing” unlawful entry).
32
79