     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
                                                               March 8, 2018

                                2018COA36

No. 18CA0398, People v. Ray and Concerning Lindecrantz —
Criminal Law — Review of Judgments — Death Penalty Cases —
Postconviction Review — Witnesses; Constitutional Law — First
Amendment — Freedom of Religion

     A division of the court of appeals considers whether a court

may compel a witness to testify in response to questions by the

prosecutor in a death penalty post-conviction proceeding when the

witness claims that testifying would violate her right to freely

exercise her religion. The division concludes that any potential

burden on those rights must give way to the state’s paramount

interests in ascertaining the truth and rendering justice.

Accordingly, the division affirms the district court’s order holding

the witness in direct contempt of court.
COLORADO COURT OF APPEALS                                      2018COA36


Court of Appeals No. 18CA0398
Arapahoe County District Court No. 06CR697
Honorable Michelle A. Amico, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert K. Ray,

Defendant,

and Concerning Greta Lindecrantz,

Respondent-Appellant.


                               ORDER AFFIRMED

                                  Division A
                         Opinion by JUDGE J. JONES
                        Hawthorne and Terry, JJ., concur

                              Opinion Modified and
                         Selected for Official Publication

                           Announced March 8, 2018


Cynthia H. Coffman, Attorney General, Matthew Grove, Assistant Attorney
General, Denver, Colorado, for Appellee

Killmer, Lane & Newman, L.L.P., Mari Newman, Denver, Colorado, for
Respondent-Appellant
¶1    Greta Lindecrantz appeals the trial court’s order holding her in

 direct contempt for refusing to testify pursuant to the People’s

 subpoena in this Crim. P. 32.2 proceeding. She contends that

 requiring her to testify in response to questions posed by the

 prosecutor on direct examination violates her rights under the Free

 Exercise Clause of the United States Constitution. We conclude,

 however, that any potential burden on those rights must give way to

 the state’s paramount interests in ascertaining the truth and

 rendering justice. So we affirm.

                            I. Background

¶2    The People charged Robert K. Ray with the first degree murder

 of Javad Marshall-Fields, and sought the death penalty. His

 attorneys hired Ms. Lindecrantz as an investigator to assist them,

 primarily, it appears, in the penalty phase of the case. A jury found

 Ray guilty and determined that he should be sentenced to death for

 his crime. The court imposed that sentence.

¶3    As required by both statute and rule, the trial court then

 began the postconviction review of Ray’s conviction and sentence.

 See §§ 16-12-201 to -210, C.R.S. 2017; Crim. P. 32.2. In that

 proceeding, Ray seeks postconviction relief, claiming that his


                                    1
 counsel rendered ineffective assistance. Part of that claim

 challenges Ms. Lindecrantz’s investigation (as well as that of her

 colleagues). The prosecution served her with a subpoena to testify.

 She moved to quash the subpoena, arguing that as a devout

 Mennonite she is opposed to the death penalty on religious

 grounds, and that she feared that by truthfully answering the

 prosecutor’s questions she would provide information from which

 the prosecutor could argue that Ray received effective assistance.

 That, in turn, could result in the court denying Ray’s ineffective

 assistance claim and, consequently, upholding the conviction and

 death sentence.

¶4    In a thorough, well-reasoned written order, the trial court

 denied Ms. Lindecrantz’s motion to quash. In short, the court ruled

 that whether rational basis or strict scrutiny analysis applies, Ms.

 Lindecrantz’s sincerely held religious beliefs don’t justify refusing to

 answer the prosecutor’s questions under oath in response to the

 People’s subpoena.

¶5    When the prosecutor called Ms. Lindecrantz to the stand, the

 trial court explained to her the obligation to testify, the concept of

 contempt, and the potential consequences if she refused to testify.


                                    2
 Nonetheless, Ms. Lindecrantz refused to answer the prosecutor’s

 questions. The court continued to warn her, but she persisted in

 insisting that her religious beliefs precluded her from answering.

 The court found her in direct contempt and remanded her to the

 sheriff’s custody “until she elects to answer the questions” as a

 remedial sanction. The court declined to stay its order, and so Ms.

 Lindecrantz has been in jail since February 26 of this year.

¶6    Ms. Lindecrantz appeals the order finding her in contempt.

 But her claim has changed somewhat. She now says that being

 called as a witness for the prosecution makes her a “tool” or

 “weapon” of the prosecutor’s effort to execute Ray. She would

 answer questions posed by the trial court on direct examination,

 and questions posed on cross-examination by the prosecutor and

 defense counsel. She doesn’t want to answer questions posed by

 the prosecutor on direct examination. On March 2, the trial court

 rejected that proposed procedure (a matter we’ll get to later).

¶7    We’ve handled this appeal in a greatly expedited way in light of

 Ms. Lindecrantz’s imprisonment, concerns about her health, and

 the pendency of the Rule 32.2 proceeding in the trial court. See

 C.A.R. 2 (appellate court may suspend requirements of the


                                    3
 appellate rules in the interest of expediting a decision). 1 But we

 have reviewed the relevant portions of the trial court record, the

 transcript of the hearing at which the trial court found Ms.

 Lindecrantz in contempt, and Ms. Lindecrantz’s filings in this court

 explaining her position. And we held oral argument on the

 afternoon of March 2. Having considered these materials, the

 parties’ arguments, and the relevant law, we conclude that we must

 affirm the trial court.

                             II. Discussion

¶8    The question before us is this: May Ms. Lindecrantz refuse to

 testify in this capital case in response to the People’s subpoena —

 that is, testify as a witness called by the prosecution — because she

 believes — as a tenet of her religion — that the death penalty is

 wrong? We answer that question “no.”

¶9    We begin by assuming that Ms. Lindecrantz’s religious beliefs

 on this subject are both genuine and sincerely held. And we will


 1 In the interest of resolving the appeal as quickly as possible, we
 originally issued this opinion as unpublished. But because the
 case concerns an issue of first impression in Colorado, and an issue
 of public interest, we’ve decided that it should be officially
 published. See C.A.R. 35(e). We’ve made a few minor changes to
 the opinion for the purpose of clarity.

                                    4
  assume that allowing the prosecution to call her to testify would

  substantially burden her exercise of her religious beliefs. 2 But this

  is only one side of the scale; the state also has interests which carry

  weight and must be considered.

¶ 10   How we weigh these competing interests turns first on the

  level of scrutiny we give to the state’s desire to elicit the information

  Ms. Lindecrantz possesses. Arguably, we need only determine

  whether the state has a rational basis for seeking Ms. Lindecrantz’s

  testimony. This is so because that level of scrutiny applies to

  neutral laws of general applicability, Emp’t Div., Dep’t of Human

  Res. v. Smith, 494 U.S. 872, 879 (1990), and Crim. P. 17, pursuant

  to which the prosecution issued the subpoena, could be regarded as

  one such law. 3 Ms. Lindecrantz doesn’t argue that the prosecution

  lacks a rational basis for its subpoena (nor could she plausibly do



  2 This is a somewhat dubious proposition, given that regardless of
  whether questions are asked by the prosecutor on direct or
  cross-examination, the answers would be the same and would have
  the same effect on Ray’s claim. But we’ll leave that aside.

  3 Congress enacted the Religious Freedom Restoration Act of 1993
  (RFRA), 42 U.S.C. § 2000bb-1 (2012), to return Free Exercise law to
  its pre-Smith status. RFRA, however, doesn’t apply to state court
  proceedings.

                                      5
  so). So if this level of scrutiny applies, the People necessarily

  prevail.

¶ 11   But it’s not that simple. Ms. Lindecrantz argues that we must

  apply strict scrutiny, for three reasons: (1) death penalty cases are

  “different”; (2) in addition to suffering a violation of her right to free

  exercise of religion, the People seek to compel her to speak; and (3)

  Crim. P. 17 isn’t really neutral because subsection (h) allows a

  court to deem a person in contempt only if that person fails to obey

  a duly served subpoena “without adequate excuse.” On the latter,

  she argues that because recalcitrant witnesses’ excuses for refusing

  to appear or testify must be assessed on a case-by-case basis,

  subsection (h) doesn’t apply uniformly.

¶ 12   Taking Ms. Lindecrantz’s “death is different” argument first,

  we find no authority supporting the notion that, when the death

  penalty is on the table, witness testimony is subject to different

  rules than those that apply in all other cases. The cases on which

  Ms. Lindecrantz relies all concern procedural rights of defendants in

  capital cases. Nothing in those cases even hints that witnesses

  have more license to refuse to testify in capital cases than they have

  in other cases. And no principle espoused in those cases can be


                                       6
  extrapolated to apply in Ms. Lindecrantz’s favor without doing

  serious damage to the twin notions of intellectual honesty and

  fealty to the law. Besides all that, as discussed more fully below,

  the fact that this is a capital case actually cuts against Ms.

  Lindecrantz’s position. 4

¶ 13   Her third argument fares somewhat better, but ultimately

  fails. 5 We will assume, without deciding, that strict scrutiny applies

  because Crim. P. 17(h) is not truly neutral. Under that test, “any

  burden on a religious practice must be narrowly tailored to advance

  a compelling governmental interest.” Town of Foxfield v.

  Archdiocese of Denver, 148 P.3d 339, 346 (Colo. App. 2006); see

  Wisconsin v. Yoder, 406 U.S. 205, 215, 220 (1972); Sherbert v.

  Verner, 374 U.S. 398, 403 (1963).

¶ 14   The governmental interests in this case are obviously

  compelling. Though Ms. Lindecrantz characterizes the state’s

  4We also observe that creating special rules for witnesses in capital
  cases is fraught with the potential for undesirable consequences,
  many of which we likely can’t foresee.

  5Because we decide to apply strict scrutiny based on Ms.
  Lindecrantz’s argument that Crim. P. 17(h) isn’t truly neutral, we
  needn’t address her argument that strict scrutiny applies because
  she is being compelled to speak (a so-called “hybrid-rights”
  exception to rational basis review).

                                     7
  interest as seeing Ray put to death, that isn’t it at all. Rather, as

  many courts addressing similar issues have said, the state has

  compelling interests in ascertaining the truth and rendering a just

  judgment in accordance with the law. See, e.g., Grand Jury

  Proceedings of John Doe v. United States, 842 F.2d 244, 246, 248

  (10th Cir. 1988); Port v. Heard, 764 F.2d 423, 432-33 (5th Cir.

  1985); Smilow v. United States, 465 F.2d 802, 805 (2d Cir.), vacated

  on other grounds, 409 U.S. 944 (1972); Keenan v. Gigante, 390

  N.E.2d 1151, 1155 (N.Y. 1979); In re Williams, 152 S.E.2d 317, 327

  (N.C. 1967); State v. Bing, 253 S.E.2d 101, 102 (S.C. 1979). These

  interests are at their apex in this case, where the stakes — a man’s

  life — couldn’t be higher. See In re Williams, 152 S.E.2d at 327

  (clergyman required to testify in capital case notwithstanding his

  religious beliefs).

¶ 15   There remains the question whether holding Ms. Lindecrantz

  in contempt is narrowly tailored to advance the government’s

  compelling interests. She says that it isn’t for two reasons. First, it

  isn’t because the evidence the prosecution seeks to obtain from her

  has been or could be obtained by other means. But the trial court

  judge, who is much closer to the action than we are, and who must


                                     8
  ultimately decide Ray’s ineffective assistance claim, said otherwise.

  Suffice it to say that Ms. Lindecrantz has information directly

  relevant to the claim, she is in the best position to testify about

  much of that information, and it is unclear at this point all of what

  the prosecutor would ask her, what she would say in response, and

  how the prosecutor would follow up. See In re Grand Jury

  Empaneling of Special Grand Jury, 171 F.3d 826, 823-33 (3d Cir.

  1999) (rejecting a similar argument); Keenan, 390 N.E.2d at 1155

  (same). 6

¶ 16   The second reason is that the court could proceed by asking

  her questions, to be followed by cross-examination by the

  prosecutor and defense counsel. The trial court rejected this

  suggestion because the court didn’t want to take on, or appear to

  take on, the role of an advocate; taking on the role of a questioner

  could expose the court to accusations of bias; evidence would best

  be obtained by having the prosecution proceed as normal — by


  6 The one case Ms. Lindecrantz cites in support of her position on
  this issue, Perez v. Paragon Contractors Corp., No. 2:13CV00281-
  DS, 2014 WL 4628572 (D. Utah Sept. 11, 2014), is distinguishable.
  That was a civil case, it was decided under RFRA, and there was a
  sufficient showing that the information in question could be
  obtained from other sources.

                                     9
  direct examination; and a witness can’t be allowed to dictate the

  terms of her own examination. We see nothing in these reasons

  with which to quarrel. 7

¶ 17   In sum, we conclude that Ms. Lindecrantz’s position fails

  under both rational basis and strict scrutiny analysis.

                             III. Conclusion

¶ 18   It’s been said that the public has a right to every person’s

  evidence. United States v. Bryan, 339 U.S. 323, 331 (1950); see

  Grand Jury Proceedings of John Doe, 842 F.2d at 246 (“‘[W]hen the

  course of justice requires the investigation of truth, no man has any

  knowledge that is rightly private.’” (quoting 8 J. Wigmore, Evidence

  in Trials at Common Law § 2192, at 72 (McNaughton rev. 1961))).

  That is especially so in this case. Though “religious beliefs are not

  lightly to be brushed aside and overridden by the order of a court,

  they must yield to the ‘compelling interest’ of the state in doing

  justice between the state and one charged with a serious criminal

  7 People v. Esquibel, 43 Colo. App. 191, 599 P.2d 981 (1979), on
  which Ms. Lindecrantz relies, is distinguishable. In that case, the
  prosecution asked the court to call a witness as the court’s own
  witness. The prosecution in this case hasn’t done anything like
  that. And the judge in Esquibel didn’t question the witness; direct
  and cross-examination were conducted in, more or less, the usual
  manner. That’s not what Ms. Lindecrantz is proposing.

                                    10
  offense for which, if guilt be established, his life may be forfeited.”

  In re Williams, 152 S.E.2d at 327.

¶ 19   Ms. Lindecrantz is in a tough spot — caught between the

  proverbial rock and a hard place. We take no pleasure in declining

  to extricate her. But the state of the law being what it is, decline we

  must.

¶ 20   The order is affirmed.

       JUDGE HAWTHORNE and JUDGE TERRY concur.




                                     11
