The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY August 29, 2019

No. 2015CA1898 People v. West — Constitutional Law — Sixth Amendment — Right to Counsel — Right to Self-Representation

In this direct appeal of a defendant’s multiple convictions, a

division of the court of appeals considers whether a trial court’s

multiple evidentiary and discovery rulings against the pro se

defendant deprived him of his right to self-representation.

The division concludes that the Sixth Amendment’s guarantee of

the right to self-representation is narrow, pertaining only to the

question of whether a defendant knowingly and intelligently waived

his right to counsel in favor of proceeding pro se. See People v.

Arguello,

(Colo. 1989). Accordingly, the

constitutional right does not extend to protect a pro se defendant

from purported evidentiary or discovery errors made by the trial

court. COLORADO COURT OF APPEALS

Court of Appeals No. 15CA1898 Boulder County District Court No. 14CR1657 Honorable Andrew R. Macdonald, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy West,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE TAUBMAN Hawthorne and Grove, JJ., concur

Announced August 29, 2019

Philip J. Weiser, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Timothy West, appeals the judgment of conviction

entered on a jury verdict finding him guilty of sexual assault of a

child under fifteen years of age, contributing to the delinquency of a

minor, and a class 4 drug felony. As an issue of first impression,

West, who represented himself at trial, asks us to consider whether

the trial court’s evidentiary and discovery rulings deprived him of

his right to self-representation. We conclude that they did not.

¶2 He also contends that the trial court (1) violated his right to a

speedy trial; (2) erred by not releasing the victim’s juvenile records

to him; (3) allowed improper testimony bolstering the victim’s

credibility; (4) erred by allowing the prosecution to untimely add

counts that contained a variance and trying those counts in the

wrong venue; and (5) cumulatively erred. We reject these

contentions as well and therefore affirm.

I. Background

¶3 In 2014, the People charged West with, among other things,

sexual assault of a child after he admitted to having sex with the

underage victim. Disregarding the trial court’s advisement, West

waived his right to counsel, choosing instead to proceed pro se.

1 ¶4 Throughout the course of the trial, the court repeatedly

explained the hazards of West representing himself, at times

making statements such as “he who represents himself has a fool

for a [client]” and “be prepared to live with the consequence of

[representing yourself], which is you are not going to have a lot of

resources that would be available to you with court-appointed

counsel.”

¶5 West continually asserted his right to a speedy trial. Over

West’s objection that it would violate his speedy trial rights, the

court set his trial for June 22, 2015. West then moved to reset the

trial within what he maintained was the statutory speedy trial

period, drawing the court’s attention to a document he had placed

in the mail on December 20, 2014, that purported to notify the

court and prosecution of his not guilty plea. The trial court denied

his motion. On June 2 and June 12, West again argued that his

speedy trial rights had been violated. The court rejected both

arguments, stating that the June 22 date was well within his

speedy trial period based on the prosecutor’s argument that the

period began on the date of his original arraignment hearing on

January 16, 2015. On June 19, West made one final effort to

2 dismiss his charges for violation of his statutory and constitutional

speedy trial rights. The court denied the motion, ruling that, even if

he properly entered his plea on December 20, 2014, June 22 was

the first business day after the statutory period expired and, thus,

the trial date was within the statutory speedy trial period.

II. Speedy Trial

¶6 West contends that the trial court violated his statutory and

constitutional rights to a speedy trial by setting his trial date for

June 22, 2015 — more than 180 days after he initially mailed his

notice of plea of not guilty on December 20, 2014. 1 We disagree.

A. Standard of Review and Preservation

¶7 We review de novo the trial court’s interpretation of Colorado’s

speedy trial statute and its analysis of the constitutional right to a

speedy trial. See People v. Nelson,

,

. However, we review the court’s findings of fact

for clear error, disregarding them only if the record is devoid of

support. Id. at ¶ 25,

.

1 West’s argument is based on the incorrect premise that the statutory speedy trial period is 180 days. In fact, under section 18- 1-405(1), C.R.S. 2018, it is six months.

3 ¶8 It is undisputed that West preserved his statutory speedy trial

argument. For purposes of this opinion, we will assume West also

preserved his constitutional speedy trial argument.

B. Applicable Law

¶9 Both Federal and State Constitutions as well as a Colorado

statute protect a defendant’s right to a speedy trial. Id. at ¶ 22.

While the Sixth Amendment to the United States Constitution and

article II, section 16 of the Colorado Constitution guarantee the

right, the speedy trial statute implements it by prescribing a

deadline within which the defendant must be brought to trial after

the right attaches. Id. at ¶¶ 21-22,

.

¶ 10 The constitutional right to speedy trial attaches when a

defendant is formally charged with an offense or arrested and

continuously held in custody prior to the filing of formal charges,

whichever occurs first. Moody v. Corsentino,

(Colo. 1993) (citing United States v. Marion,

(1971)); see also People v. Chavez,

(Colo. 1989);

People v. Glaser,

(Colo. App. 2010).

¶ 11 The United States Supreme Court has announced, and

Colorado has adopted, a four-factor balancing test to determine

4 whether a trial court has violated a defendant’s constitutional right

to a speedy trial. Barker v. Wingo,

(1972);

Chavez,

. The Barker test requires us to weigh (1)

the length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of his or her right to a speedy trial; and (4)

prejudice to the defendant.

.

¶ 12 The Barker Court described the length of the delay as “a

triggering mechanism,” requiring the court to first consider whether

the length of delay is “presumptively prejudicial.”

Unless the

court deems the length prejudicial, it need not analyze the

remaining factors.

. In determining whether the first

factor triggers the rest of the analysis, the court may take into

consideration the particular circumstances of the case, such as the

seriousness and complexity of the charged offense.

¶ 13 Colorado’s statutory right to a speedy trial imposes a more

precise period: six months from the date of the entry of a plea of not

guilty. § 18-1-405(1), C.R.S. 2018. The period ends at the

commencement of trial. Id. While the prosecution and the trial

court bear the burden of compliance, the defendant bears the

5 burden of proving that he or she was denied a speedy trial. Saiz v.

Dist. Court,

,

(1975).

C. Analysis

¶ 14 We first address whether, under Barker, the trial court

violated West’s constitutional right to a speedy trial. Thus, we look

to the length of the alleged delay to assess its presumptive

prejudice. Here, the constitutional right attached at the time of

West’s arrest, which was eight months and six days before the first

day of trial. Our jurisprudence suggests that the length of delay

becomes presumptively prejudicial as it approaches one year. See

People v. Sandoval-Candelaria,

,

;

Nelson, ¶ 23,

(citing Doggett v. United States,

, 651 n.1 (1992)); Glaser,

; see also People

v. Brewster,

(Colo. App. 2009) (concluding that

seven-and-one-half months was not a presumptively prejudicial

delay). Accordingly, we conclude that the delay here did not

prejudice West and thus we need not consider the remaining

factors.

¶ 15 Turning to West’s argument that the trial court violated his

statutory right to a speedy trial, we agree with the People that, even

6 if he invoked his right by mailing his plea of not guilty on December

20, 2014, trial commenced on June 22, the first business day after

the conclusion of the six-month period. § 2-4-108(2), C.R.S. 2018;

People v. Hampton,

, 771 n.8 (Colo. 1985). Thus, we

need not determine which event started the speedy trial clock

because, even if we assume that West’s mailing of December 20,

2014, did so, the June 22 trial date fell within the statutory period.

III. Right to Self-Representation

¶ 16 West argues that the trial court, through multiple discovery

and evidentiary rulings, deprived him of his fundamental right to

self-representation. We disagree.

A. Standard of Review

¶ 17 Whether a trial court denied a defendant’s right to self-

representation poses a question of law we review de novo. People v.

Abdu,

(Colo. App. 2009). If we conclude that a

trial court denied a defendant’s right to self-representation,

structural error results, and we must reverse. See People v. Waller,

,

(stating that structural

error, and not harmless error analysis, applies to the denial of the

right to self-representation).

7 B. Applicable Law

¶ 18 Though the State and Federal Constitutions guarantee the

right to self-representation, see Colo. Const. art. II. § 16; Faretta v.

California,

(1975), the predominant right to

counsel requires the trial court to ensure that the defendant has

knowingly and intelligently relinquished the right to counsel in

favor of proceeding pro se. See People v. Arguello,

(Colo. 1989). Accordingly, the Arguello court acknowledged that

“[c]ourts must indulge every reasonable presumption against

finding a waiver of the fundamental right to counsel.”

¶ 19 Thus, when a defendant asserts a violation of his or her right

to self-representation, appellate courts generally consider whether

the trial court appointed counsel despite the defendant’s

unequivocal waiver of his or her right to counsel. See United States

v. McNeal,

(10th Cir. 2016) (unpublished)

(holding that the trial court did not violate the defendant’s right to

self-representation when it did not grant him a continuance to

prepare his defense); People v. Johnson,

,

(reversing the trial court’s judgment based

on its denial of the invocation of his right to represent himself);

8 Abdu,

(concluding that the trial court did not

violate the defendant’s right to self-representation when the

defendant did not unequivocally assert his right).

C. Analysis

¶ 20 A defendant’s constitutional right to self-representation

proscribes the imposition of unwanted counsel, but it does not

insulate the defendant from the pitfalls of a poorly mounted pro se

defense. West submits nine broad allegations of the trial court

denying his right to self-representation, but we count at least

twenty-four separate instances in which West asserts that the trial

court’s actions thwarted his right to self-representation:

(1) denying him the right to appear pro se at the advisement

hearing;

(2) appointing the public defender over his objections;

(3) giving West only a brief time to read discovery before the

preliminary hearing;

(4) allowing the prosecutor to violate a discovery deadline;

(5) refusing to require the prosecutor to give him a bill of

particulars to narrow the timeframe for the offense;

(6) providing West with limited access to discovery;

9 (7) forcing him to choose between preparation of his defense

and sleep;

(8) not promptly appointing an investigator;

(9) declining to disclose the victim’s address;

(10) allowing the prosecutor to add charges too late for him

to be able sufficiently prepare his defense against them;

(11) prohibiting him from calling witnesses to testify about

the victim’s prior acts of dishonesty;

(12) barring him from recalling the victim as a witness;

(13) disallowing discovery of juvenile documents to attack the

victim’s motive and credibility;

(14) preventing him from cross-examining the victim about

her age, her relationship with her mother, and the alleged

abuse;

(15) precluding introduction of alternate suspect evidence;

(16) barring him from eliciting testimony about an alleged

hack of his Facebook account;

(17) precluding his access to a police report;

(18) ruling that he could not question the detective about the

victim’s motive;

10 (19) denying him the right to impeach the victim’s mother;

(20) overruling numerous objections he made but sustaining

most of the prosecution’s objections;

(21) admitting improper narrative testimony;

(22) improperly allowing bolstering testimony;

(23) permitting the prosecution to use his own offer of proof

against him; and

(24) showing bias against him as a pro se defendant through

its rulings.

¶ 21 Though some of the arguments above also assert additional

constitutional violations — including the rights to a complete

defense, due process, a fair trial, confront witnesses against him,

and compulsory process — the appeal couches all arguments within

the constitutional right to self-representation.

¶ 22 However, West does not cite authority, and we know of none,

in which an appellate court has concluded that a trial court’s

rulings on evidentiary and discovery issues violated the defendant’s

right to self-representation.

¶ 23 Because the additional aforementioned constitutional

arguments are not developed, we do not address them. See People

11 v. Diefenderfer,

(Colo. 1989) (“It is the duty of

counsel for appealing parties to inform a reviewing court both as to

the specific errors relied upon and as to the grounds, supporting

facts and authorities therefor.”)

1. West’s Arguments Do Not Implicate His Right to Self-Representation

¶ 24 West repeatedly alleges violations of his right to

self-representation based on the trial court’s evidentiary and

discovery rulings. However, if the trial court erred or abused its

discretion making these rulings, such assertions of error or abuse

of discretion, for the most part, could have been made even if West

had been represented by counsel.

¶ 25 Moreover, though the oft-recited platitude that “a pro se

defense is usually a bad defense,” Abdu,

(quoting

Martinez v. Court of Appeal,

(2000)), may ring

true, the interests of justice did not obligate the trial court to try the

case for West, see Bergerud, 223 P.3d at 700 (stating that the trial

court may, but is not required to, assist a pro se defendant).

Nevertheless, the trial court appointed advisory counsel and, at

various stages, explained its rulings and the law to West, while at

12 other times it provided him lenient treatment, though it was not

required to do so. The court also informed West multiple times

that, if he disagreed with a discovery ruling, he could raise the

disagreement on appeal.

¶ 26 We conclude that even if the trial court’s numerous rulings

were erroneous or an abuse of discretion, they did not constitute a

violation of West’s constitutional right to self-representation. West

litigated his case to a jury representing himself, which is precisely

what he requested.

2. West’s Waiver of His Right to Counsel

¶ 27 However, West raises a single claim that we agree implicates

his right to self-representation: the trial court purportedly denied

West’s request to proceed pro se and appointed a public defender at

the advisement hearing. This contention requires us to review

West’s putative waiver of his right to counsel and the specific

language thereof. West initially stated, “At this time, I wish to

proceed pro se, but I do not wish to completely waive my right to

counsel. I need to think about it.” When the court replied that it

would appoint a public defender, he vacillated again, stating, “if you

do that, then I will be denied the evidence against me, so I must

13 proceed pro se even thought [sic] I would like the assistance of

counsel.”

¶ 28 The court then explained that it must either appoint counsel

or allow him to continue without an attorney. When West stated

that he would proceed pro se, he also indicated that he might seek

a private attorney. Although West’s final statement to the court at

the advisement hearing was that he wished “to proceed pro se,” we

agree with the trial court’s implicit determination when it appointed

a public defender that the irresoluteness of his statements to the

court suggested that his waiver was not unequivocal. See Abdu,

. Thus, until he entered an unequivocal waiver

and dismissed his public defender at the next hearing, because he

had not yet properly invoked his right to self-representation, the

trial court did not err in indulging every reasonable presumption

against finding that he had waived his fundamental right to

counsel.

IV. The Victim’s Juvenile Record

¶ 29 West contends that the trial court erred by failing to disclose

the victim’s juvenile record because it contained exculpatory

evidence. We disagree.

14 A. Standard of Review

¶ 30 We review a trial court’s ruling on discovery issues, including

its decision whether to review juvenile records in camera, for an

abuse of discretion. See People v. Herrera,

,

(stating that abuse of discretion is the proper

standard of review for a trial court’s “decision whether to review

social services records in camera”). However, even if the court erred

in not disclosing documents, a defendant must show “a reasonable

likelihood that the verdict would have been different had the

pertinent information been disclosed before trial.” People in Interest

of A.D.T.,

(Colo. App. 2010).

¶ 31 Because the documents at issue are sealed, the People

concede — and we agree — that we may conduct an independent

review to determine whether the documents were discoverable and,

if so, whether prejudice resulted from the court’s ruling that the

records are not discoverable. See

.

B. Analysis

¶ 32 The court must weigh the interest of the People in protecting

confidential records of a victim against the defendant’s interest in

disclosure. See Martinelli v. Dist. Court,

, 612

, 1089 (1980). “If the state has an interest in the

confidentiality of certain sensitive information, . . . the court must

balance that interest against the defendant’s constitutional right to

discover favorable evidence.” A.D.T.,

(citing

Pennsylvania v. Ritchie,

(1987)).

¶ 33 Here, the court issued a protective order after its in camera

review, concluding that the documents were “not relevant to the

issue that had been raised in this case so far . . . [and, the court did

not] think it[] [was] appropriate to release them.” After our own in

camera review of the juvenile records at issue, we conclude that,

even if the records were discoverable, the verdict likely would not

have been different had the records been disclosed; thus, we affirm

the trial court’s ruling on this issue.

V. Witness Bolstering

¶ 34 West asserts that some testimony improperly bolstered the

victim’s credibility. We disagree.

¶ 35 On direct examination, the prosecutor elicited the following

testimony from the victim:

Q. [W]hen you first sat down today, the judge asked you about -- to raise your hand and to

16 talk about telling the truth today. Do you recall him asking you that? A. Yes. Q. Okay. When, um, you came in here before, did I talk to you as well about the -- about what’s the number one rule about testifying? A. Yes. Q. What’s the number one rule? A. Tell the truth. Q. Okay. Is that what you have done today while you’ve been here testifying? A. Yes.

¶ 36 During cross-examination of the victim’s mother, West asked

her mother repeatedly whether she had told the victim what to tell

law enforcement officials. Also during redirect examination, the

following exchange occurred between the prosecutor and the

victim’s mother:

Q. Okay. Mr. West asked you several times if you told [the victim] what she should say to Sandie, Detective Jones, that is? A. I told [the victim] to tell the truth.

¶ 37 Finally, during a detective’s testimony, the prosecutor used

the phrase “consistent with” in the following instances:

• asking the detective whether the timing of some text

messages between the victim and West was “consistent with”

(1) the victim’s testimony about when she was with West

and at a homeless camp, and

17 (2) police contact with the victim and her mother; and

• asking him about events West mentioned in text messages to

the victim being “consistent with” other sources of

information, including police records and the victim’s mother.

A. Standard of Review

¶ 38 Because West failed to object to the testimony now on appeal,

we review for plain error. Hagos v. People,

, ¶ 18,

, 120. We discern plain error if the error was so “obvious

and substantial” as to “undermine[] the fundamental fairness of the

trial itself [and] cast serious doubt on the reliability of the judgment

of conviction.” Id. (quoting People v. Miller,

(Colo. 2005)). Thus, we reverse only if we conclude that the trial

judge should have avoided the error “without benefit of objection.”

People v. Ujaama,

,

.

B. Applicable Law

¶ 39 Witnesses may not opine on the truthfulness of another

witness on a particular occasion. Venalonzo v. People,

,

; see Liggett v. People,

(Colo. 2006) (concluding that the prosecution may not ask a witness

to opine on the veracity of another witness’s testimony). As the

18 Venalonzo court emphasized, testimony bolstering that of another

witness becomes particularly concerning in child sexual assault

cases in which the case often turns on the witness’s credibility.

Venalonzo, ¶ 33,

. This most frequently occurs

in instances of a witness testifying that the victim’s report of sexual

assault was believable. See id.; see also People v. Wittrein,

(Colo. 2009); People v. Eppens,

(Colo.

1999).

C. Analysis

¶ 40 The mother did not opine on the truthfulness of the victim’s

testimony; instead, she told the jury that, on multiple occasions,

she had told the victim to tell the truth. The present case is unlike

Wittrein, in which the supreme court determined that a child

psychologist’s testimony that she could not imagine a child

fabricating a story about sexual assault was improper because it

was a “generalization about whether children have the

sophistication to fabricate allegations of sexual abuse.”

. Nor are the facts here similar to those in Venalonzo, where

the supreme court concluded that it was improper for the district

court to allow the victim’s mother to testify that “[the victim] did not

19 display any signs that she was lying when she reported the

incident, that [the victim] was not sophisticated enough to make up

a story about the sexual assault, and that [the victim] had no

reason to accuse [the defendant] unless the incident had actually

occurred.” ¶ 39,

.

¶ 41 Nor do the questions asked by the prosecutor, and the

testimony provided by the victim’s mother, align with those of

Liggett. In Liggett, the prosecutor asked both the defendant and

another witness whether the other was lying or mistaken.

. The supreme court deemed this type of questioning

categorically improper.

.

¶ 42 The prosecutor’s questioning of the victim about his previous

conversation with her merely elicited testimony from the victim

about the truthfulness of her own testimony, which does not

constitute bolstering as discussed in Wittrein and Venalonzo.

Moreover, the mother’s testimony stated that she had told the

victim to tell the truth — not that the victim had told the truth.

¶ 43 Finally, the detective said nothing about the truth of

testimony; instead, the detective indicated only that certain

statements did not conflict with other statements or evidence.

20 ¶ 44 Given that the unobjected-to testimony here is distinguishable

from the bolstering testimony ruled improper in other cases, we

discern no error, much less plain error.

VI. Added Counts

¶ 45 West contends that the trial court erred when, approximately

five weeks before trial, it allowed the prosecutor to add counts of

contributing to the delinquency of a minor and distribution of

marijuana to a minor, both of which occurred in a different district.

We conclude that any error was harmless.

A. Standard of Review and Preservation

¶ 46 The trial court may change the trial’s venue “when adequate

grounds are presented by the motion of a party . . . or whenever it is

necessary to obtain an impartial jury . . . . In the absence of such

grounds, however, the propriety of venue is a matter of fact and

law . . . .” People v. Reed,

(Colo. 2006) (citations

omitted). Because the underlying facts are not in dispute, we

review de novo. See People v. Shackley,

(Colo.

2011).

21 ¶ 47 West preserved this argument when, at the preliminary

hearing on the two added charges, he asserted that the prosecutor

filed the two charges in the wrong judicial district.

B. Analysis

¶ 48 “[P]roof of venue is not an element of any offense, and venue

need not be proved by the prosecution unless required by the

statute defining the offense.” People v. Perez,

(Colo. App. 2005). West does not allege prejudice attributable to the

venue that substantially affected the outcome of the trial; thus, we

discern no grounds on which the trial court could have ordered a

change of venue. § 16-6-101, C.R.S. 2018; see Keohane v.

Wilkerson,

(Colo. App. 1993), aff’d,

(Colo. 1994). To the extent that he alleges prejudice arising from

any lack of preparation time, the court and prosecutor offered a

continuance to allow him additional time to prepare. Thus, he

could have waived his right to a speedy trial in favor of extra trial

preparation time, but he made the strategic decision not to do so.

VII. Cumulative Error

¶ 49 Because we perceive no error in the trial court’s challenged

rulings, we conclude that cumulative error did not result.

22 VIII. Conclusion

¶ 50 Accordingly, the judgment is affirmed.

JUDGE HAWTHORNE and JUDGE GROVE concur.

23