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                                                         ADVANCE SHEET HEADNOTE
                                                                  September 17, 2018

                                            2018 CO 75

No. 17SA183, People v. Gutierrez—Motions to Continue—Abuse of Discretion.

       In this interlocutory appeal, the supreme court holds that the trial court did not

abuse its discretion by denying the People’s request to have their witness testify

remotely via Skype. Trial courts have broad discretion to control the manner in which

witnesses offer testimony, and a decision to prohibit a witness from testifying is

reviewed for an abuse of discretion. Because the trial court worked extensively to

accommodate the witness, the People were on notice about the importance of the

witness appearing in-person, and because denying the People’s request to allow the

witness to testify remotely is not outcome determinative, this court concludes that the

trial court did not abuse its discretion.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                      2018 CO 75

                         Supreme Court Case No. 17SA183
                      Interlocutory Appeal from the District Court
           District Court, City and County of Denver, Case No. 16CR2598
                         Honorable Brian R. Whitney, Judge
______________________________________________________________________________

                                 Plaintiff-Appellant:

                          The People of the State of Colorado,

                                           v.

                                 Defendant-Appellee:

                              Daniel S. Gutierrez.
______________________________________________________________________________

                                Order Affirmed
                                    en banc
                               September 17, 2018
______________________________________________________________________________

Attorneys for Plaintiff-Appellant:
Beth McCann, District Attorney, Second Judicial District
Katherine A. Hansen, Deputy District Attorney
      Denver, Colorado

Attorneys for Defendant-Appellee:
Megan Ring, Public Defender
Kelson Bohnet, Senior Deputy Public Defender
      Denver, Colorado

Attorney for Amicus Curiae Rocky Mountain Victim Law Center:
Katherine Houston
      Denver, Colorado

JUSTICE BOATRIGHT delivered the Opinion of the Court.
¶1    This appeal poses the narrow question whether the trial court abused its

discretion when it denied the People’s request to permit a witness to testify remotely,

via Skype or similar service, at a hearing on a motion to suppress the defendant’s post-

arrest statements. We conclude that the trial court did not abuse its discretion. Hence,

the order suppressing the defendant’s statements is affirmed.

                           I. Facts and Procedural History

¶2    Jairo Perez was shot and killed in his garage.1 A friend of the decedent stated

that he saw who committed the murder and that the murderer had fled. That witness

later positively identified the defendant, Daniel Gutierrez, as the murderer in a police

photo array.

¶3    Minutes after the murder of Perez, a man attempted to force his way into a

residence located just a block from the murder scene. That man then assaulted one of

the home’s occupants in the presence of a witness. When police later arrived and

presented the assault victim with a photo array, the victim positively identified

Gutierrez as his assailant and stated that he knew Gutierrez. The victim reported that

Gutierrez fled following the assault.

¶4    Later that same night, police arrested Gutierrez at his sister’s house. Officers

placed Gutierrez in the back seat of a police car where he spoke with Officer Tidwell.




1 This case is still in the pretrial stage. The facts recounted here are what the People
allege that the evidence at trial would establish if admitted. We recite these facts as
alleged for the limited purpose of evaluating the impact of the trial court’s suppression
order on the People’s case in chief.
                                           2
According to Officer Tidwell, Gutierrez made two inculpatory statements: “I was just

trying to get my life together man, and I was doing it until this happened tonight” and

“I’ll be honest with you, some stuff did go down over there but I blacked out and don’t

know what happened.” Gutierrez later tested positive for gunshot residue on his right

hand. He was charged with murder and assault.

¶5     Gutierrez filed several motions that required pretrial evidentiary hearings.

Relevant here, he sought to suppress the statements he made to Officer Tidwell on the

basis of an alleged Miranda violation. The court scheduled a hearing on that motion in

February 2017, but ended up continuing it three times to accommodate witness

availability. Officer Tidwell was not the sole cause of each of these continuances, but he

was unavailable for each of the hearings. In an attempt to hear all witnesses’ testimony

and complete the pretrial hearing on the motion to suppress, the court divided the

hearing into different days. At a hearing in early June where Officer Tidwell was not

present but other witnesses testified, the People stated that he would be back and

prepared to testify in July. In response, the court continued the remainder of the

hearing for July 7.

¶6     Officer Tidwell was not present at the July 7 hearing because of an on-the-job

shoulder injury that required surgery and left him “not cleared for duty.” As a result,

the People asked for another continuance, which the court granted over the defense’s




                                            3
objection. At that time, the court cautioned the People that they needed to ensure their

witness show up if they were going to meet their burden2:

      [I]t needs to become a priority of the officers that are investigating a Class
      1 felony . . . to get here on time. . . . And at the next motions [hearing] . . . if
      the officers are not available [the] motions [to suppress] are granted.
      Because without witnesses I can’t see how the People could sustain their
      burden.

¶7    The court then rescheduled the second half of the hearing for late July, just three

weeks before trial. When rescheduling the hearing, the court noted that the trial date

could not be moved because the court had no available dates between the scheduled

trial time in August and the speedy trial deadline in September. The court closed the

July 7 hearing by again cautioning the People that if the officer was not present, the

People would be unable to meet their burden in contesting the motion to suppress.

¶8    Despite the court’s repeated admonitions, Officer Tidwell did not appear at the

next hearing. The People stated that he was in California because that is where his wife

“is located” and that she was helping him recover from his shoulder surgery. The

People stated that Officer Tidwell “has not been released to return to duty, but is

willing to come in and testify as a civilian” and that he could testify remotely via Skype

or a similar service. In so doing, the People specifically stated they were not asking for




2The People bear the burden of proof to establish that there was not a violation of the
defendant’s Miranda rights by a preponderance of the evidence. People v. Knedler, 329
P.3d 242, 244–45 (Colo. 2014).
                                               4
a continuance, remarking that “we’re not asking to continue, we’re just asking to hear

the testimony by Skype.”

¶9    The court denied the People’s request to have Officer Tidwell testify via Skype.

It noted that defense counsel had repeatedly asked for in-person testimony, and that

there were “credibility issues involved in this statement,” so in-person testimony was

particularly important. The court therefore adhered to its former warning to the People

that the People would be unable to meet their burden without the officer’s presence.

The court then granted the motion to suppress, but emphasized that it did not view this

action as a sanction for the prosecution. Rather, the witness was simply not there and

as a result the People could not meet their burden. This interlocutory appeal followed.3

                                      II. Analysis

¶10   We now consider the narrow question whether or not the trial court abused its

discretion in denying the People’s request to have Officer Tidwell testify remotely,

through Skype or similar service. In their briefs, the People for the first time argue that

the court abused its discretion by failing to grant a continuance. However, because the




3 Gutierrez argues that this court lacks jurisdiction over this appeal under C.A.R. 4.1
because that rule authorizes review in only a narrow set of cases when the court has
granted a motion to suppress based on an alleged constitutional deficiency and
therefore, he argues, the rule requires a substantive finding of a constitutional violation
in the court’s order. He also argues that there is no jurisdiction because Gutierrez’s
statements are not “confessions or admissions” and thus do not fall under C.A.R. 4.1.
However, because we ultimately rule in his favor, and because the court has the
discretion to hear the case under C.A.R. 21 in either event, People v. Cowart, 244 P.3d
1199, 1207 (Colo. 2010), we decline to address Gutierrez’s jurisdictional arguments.
                                            5
People specifically stated they were not asking for a continuance, that issue is not

preserved; therefore, we decline to address that argument on appeal and limit our

review to the trial court’s exercise of discretion in denying the People’s request to

permit Officer Tidwell to testify via Skype or similar service. We conclude that the

court did not abuse its discretion. Hence, we affirm.

¶11    A trial court has broad discretion to control the manner in which witnesses offer

testimony. See CRE 611(a). A trial court’s decision to permit or prohibit a witness from

offering remote testimony is reviewed for an abuse of discretion. See People v. Casias,

2012 COA 117, ¶ 16, 312 P.3d 208, 212. An abuse of discretion occurs when the trial

court’s ruling is manifestly arbitrary, unreasonable, unfair, or based on an erroneous

understanding of the law. Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s Dep’t, 196

P.3d 892, 899 (Colo. 2008).

¶12    We found such an abuse of discretion in People v. Bakari, 780 P.2d 1089 (Colo.

1989), which the People argue is analogous to the present case. In Bakari, the court

denied the People’s second request for a continuance owing to their inadvertent failure

to subpoena witnesses for a hearing on defense motions to suppress evidence. Id. at

1090. The court denied the request even though another judge was available to hear the

motion on a different date without affecting the scheduled trial date. Id. at 1091. With

the People unable to offer evidence to contest the motions to suppress, the court granted

the defense motions. Id. The end result was that the court suppressed evidence so




                                            6
foundational to the People’s case that it effectively dismissed the underlying charges.

Id. at 1092.

¶13    On appeal, we noted that “[a]lthough the narrow procedural issue before the

court was whether it should grant the state’s second request for a continuance,” the

court was effectively “ruling on a motion to dismiss.” Id. We stated that when a court

exercises its discretion to enter a suppression order whose practical effect is

“tantamount to dismissing the charges against the defendant,” id. at 1091, the court

must consider in its analysis the “harsh consequences” of its decision in context of the

case in addition to available alternatives and the public interest. Id. at 1092–93. We

therefore concluded that the trial court abused its discretion because the People’s

inadvertent scheduling mistake did not justify what was effectively a dismissal of the

entire case. Id. at 1092.

¶14    We find Bakari distinguishable; the court’s order here did not operate as an

effective dismissal of the underlying charges.     While the People certified that the

suppressed evidence is a substantial part of the proof of the charges pending against the

defendant, they do not represent that there is “no evidence left” as they did in Bakari.

Id. at 1091. To the contrary, the People still have—at the very least—the gunshot

residue on Gutierrez’s right hand, one eyewitness to the murder, and two eyewitnesses

to the assault. Therefore, we find the People’s reliance on Bakari to be misplaced.

Instead, we focus our analysis on the court’s broad discretion to control the manner in

which witnesses offer testimony.


                                           7
¶15   Under these facts, we conclude that the trial court did not abuse its discretion in

denying the People’s request to have their witness testify remotely. First, the court’s

attempts to accommodate the People’s difficulty in procuring the officer’s presence

were extensive, sustained over a period of approximately five months, and more than

reasonable. The court repeatedly continued the hearing and even divided witness

testimony across multiple settings as the trial date approached. Second, there was

nothing unanticipated about the court’s order or its consequences.            The defense

requested in-person testimony and the court repeatedly cautioned the People that,

without the officer’s presence at the hearing, they would be unable to meet their burden

and the motion to suppress would be granted. Third, the People did not represent that

Officer Tidwell was incapable of being physically present at the July 24 hearing. In

other words, this was not an inadvertent mistake as in Bakari. Cf. People v. Crow, 789

P.2d 1104, 1107 (Colo. 1990) (contrasting the inadvertent failure in Bakari with the

“knowing” failure to subpoena important witnesses). Fourth, the trial court reasonably

required Officer Tidwell to testify in person because the court found that his credibility

was an important issue for the hearing.         Finally, the trial court’s order, while

suppressing the defendant’s statements, was not tantamount to dismissing the

underlying charges. We therefore conclude there was nothing unreasonable, arbitrary,

or unfair in the court’s denial of the People’s request to allow remote testimony. Cf. id.

(finding no abuse of discretion when the trial court ordered suppression based on the

People’s failure to procure a witness’s presence at a suppression hearing).


                                            8
                                   III. Conclusion

¶16   The trial court’s order suppressing the defendant’s statements is affirmed and

the case is remanded back to that court for further proceedings.




                                            9
