     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
                                                                July 12, 2018

                                2018COA95

No. 15CA1176, People v. Lujan — Constitutional Law — Sixth
Amendment — Speedy and Public Trial

     A division of the court of appeals considers whether the

closure of a courtroom — excluding the public, the parties, and

counsel — to reread instructions to the jury during deliberation

violates a defendant’s Sixth Amendment right to a public trial. The

division concludes that the defendant’s right to a public trial was

violated and that the violation was not trivial because two of the

purposes of the right to a public trial — (1) “to ensure a fair trial”

and (2) “to remind the prosecutor and judge of their responsibility

to the accused and the importance of their functions” — were

compromised by the empty courtroom. Peterson v. Williams, 85

F.3d 39, 43 (2d Cir. 1996). Because the violation of a criminal
defendant’s right to a public trial constitutes structural error, the

division reverses and remands for a new trial.
COLORADO COURT OF APPEALS                                     2018COA95


Court of Appeals No. 15CA1176
Boulder County District Court No. 13CR1829
Honorable Andrew R. Macdonald, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Abel Lujan,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division III
                         Opinion by JUDGE RICHMAN
                          Webb and Fox, JJ., concur

                           Announced July 12, 2018


Cynthia H. Coffman, Attorney General, Brittany Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Haddon, Morgan and Foreman, P.C., Adam Mueller, Denver, Colorado, for
Defendant-Appellant
¶1    Defendant, Abel Lujan, appeals the judgment of conviction

 entered on a jury verdict finding him guilty of second degree

 murder. Because the trial court erroneously ordered the courtroom

 to be completely cleared when it reread instructions to the jury

 during deliberations, over defendant’s objection, we must reverse

 and remand for a new trial.

                            I. Background

¶2    The victim, defendant’s live-in girlfriend, was beaten,

 strangled, and left on the ground outside a friend’s apartment in

 1999. In 2013, the People charged defendant with first degree

 murder. On the first day of trial, defendant conceded that he was

 responsible for the victim’s death, but he argued that he was guilty

 only of reckless manslaughter.

¶3    Over defendant’s objection that the evidence violated CRE

 404(b), defendant’s ex-wife and a former girlfriend testified about

 defendant’s behavior toward them, including that he had hit and

 tried to strangle or suffocate them. For each witness’s testimony,

 the trial court gave a contemporaneous limiting instruction.

 However, at the close of evidence, the jury was instructed only

 generally that “[t]he Court admitted certain evidence for a limited

                                   1
 purpose. You are instructed that you cannot consider that evidence

 except for the limited purpose I told you about when it was

 admitted.”

¶4    During deliberations, the jury submitted two questions to the

 trial court, one of which said: “Please write down the statement for

 the limited use statement [sic] on the testimonies of [defendant’s ex-

 wife and former girlfriend].” Defense counsel objected to sending a

 written version of the contemporaneous instructions to the jury

 room if it did not contain additional language explicitly stating that

 the jury could not use the testimonies as evidence of propensity —

 language that the trial court had already rejected. The prosecutor

 suggested that the jury be brought back to the courtroom, where

 the judge could read the written version of the contemporaneous

 instructions. After a lengthy discussion, the court gave defense

 counsel a choice between (1) sending the jury a written version of

 the limiting instructions given contemporaneously with the

 testimony and (2) clearing the courtroom while it reread the

 contemporaneous limiting instructions aloud to the jury. Counsel

 indicated that he preferred reading the instructions to the jury, but

 he objected to excluding everyone from the courtroom. The court

                                    2
 responded that it could “never bring the jury out in front of the

 parties” during deliberations and that counsel did not have to worry

 about it because the proceeding would be on the record.

¶5    Ultimately, defense counsel asked the court to read the

 instructions aloud and to note that “we are not in the courtroom,

 . . . and we are allowed to be.” Counsel also requested that the jury

 be told why the parties were not present, and the judge responded

 “of course.”

¶6    With the courtroom empty except for the jury, the bailiff, and

 the court reporter, the trial court said, “All right. Good morning,

 ladies and gentlemen. I’m going to read to you the instructions I

 read contemporaneous[ly] with the testimony of [defendant’s ex-

 girlfriend and his ex-wife].” Then the court reread the instructions

 directing that the testimony from each witness could be considered

 only to show motive, intent, or common plan. Finally, it said, “That

 — those are the instructions. Okay. So thank you.”

¶7    The jury found defendant guilty of second degree (knowing)

 murder.

¶8    On appeal, defendant contends that this conviction must be

 reversed because (1) closure of the courtroom to read limiting

                                   3
 instructions violated his right to a public trial and his right to be

 present and (2) the trial court made three erroneous evidentiary

 decisions. We agree with defendant’s contention regarding a public

 trial and, because we conclude that the error is structural, we do

 not address his contention that his right to be present was violated,

 as a violation of that right is not structural error. However, we

 address his evidentiary contentions because they might arise on

 remand.

                             II. Public Trial

¶9    A criminal defendant’s right to a public trial is guaranteed by

 both the United States and Colorado Constitutions. U.S. Const.

 amends. VI, XIV; Colo. Const. art. II, § 16. When the trial court

 erroneously deprives a defendant of this right, the error is

 structural and “require[s] automatic reversal without individualized

 analysis of how the error impairs the reliability of the judgment of

 conviction.” Hagos v. People, 2012 CO 63, ¶ 10; see Stackhouse v.

 People, 2015 CO 48, ¶ 7. A violation of the right to a public trial is

 not amenable to a harmless error analysis because “the effects of

 the error are simply too hard to measure.” Weaver v.

 Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1908 (2017); see

                                    4
  Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (noting that it would

  be impossible to demonstrate the prejudicial effect of the violation of

  a criminal defendant’s right to a public trial).

¶ 10   A trial court’s decision to completely close a criminal

  courtroom will not violate a defendant’s public trial right if four

  requirements, articulated in Waller, are met: (1) “the party seeking

  to close the [proceeding] must advance an overriding interest that is

  likely to be prejudiced”; (2) “the closure must be no broader than

  necessary to protect that interest”; (3) “the trial court must consider

  reasonable alternatives to closing the proceeding”; and (4) “[the trial

  court] must make findings adequate to support the closure.” 467

  U.S. at 48; accord People v. Hassen, 2015 CO 49, ¶ 9.

¶ 11   Here, the trial court decided sua sponte to exclude all but the

  jury, the bailiff, the reporter, and itself from the courtroom,

  advancing the bare assertion that it could never bring the jury in

  front of parties during deliberations. The court’s statement is

  contrary to proper court practices that place the jury and parties

  together during deliberations, such as the reading of an Allen

  instruction or the presentation of trial exhibits. See People v.

  Payne, 2014 COA 81, ¶20 (“[D]efendant had a constitutional right to

                                     5
  be present while the trial court read the modified Allen instruction

  in open court . . . .”); see also DeBella v. People, 233 P.3d 664, 669

  (Colo. 2010) (holding that a court may require that a video be

  viewed in open court rather than give a jury unfettered access

  during deliberations). And the court gave no reason for excluding

  the public.

¶ 12   Thus, no overriding interest was articulated. The closure was

  exceedingly broad. And the record reflects that, because defendant

  chose to have the instruction read aloud, the court rejected the

  reasonable alternative of sending written instructions to the jury,

  but made no findings to justify the total closure. Under these

  circumstances, the closure was not justified. See, e.g., Presley v.

  Georgia, 558 U.S. 209, 216 (2010) (reversing the defendant’s

  conviction because the trial court did not consider all reasonable

  alternatives to closure, “and that is all this Court needs to decide”).

¶ 13   The People do not argue that the Waller elements were met.

  Instead, they urge us to affirm the conviction, notwithstanding the

  unjustified closure, because the exclusion was “trivial” and did not

  violate defendant’s Sixth Amendment right. See Waller, 467 U.S. at

  50 (“[T]he remedy should be appropriate to the violation.”). They

                                     6
  argue that no Sixth Amendment violation occurred because the

  closure was brief and transcribed, and the court only repeated the

  instructions presented during the public portion of the trial.

¶ 14   The triviality standard, first recognized in the Second Circuit,

  follows the rationale that not every deprivation in a structural

  category constitutes a constitutional violation or requires reversal of

  the conviction. See Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir.

  2009). When the purposes of the right to a public trial — (1) “to

  ensure a fair trial”; (2) “to remind the prosecutor and judge of their

  responsibility to the accused and the importance of their functions”;

  (3) “to encourage witnesses to come forward”; and (4) “to discourage

  perjury” — are not compromised, no Sixth Amendment violation

  occurs. Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996).

¶ 15   The triviality standard has not been adopted in Colorado,

  although our supreme court has considered it. See Hassen, ¶¶ 15,

  17. However, the Tenth Circuit has recognized that a “brief and

  inadvertent closing of . . . the courtroom . . . [does] not violate the

  Sixth Amendment.” United States v. Al-Smadi, 15 F.3d 153, 154-55

  (10th Cir. 1994). This position appears to be the majority view

  among courts that have considered this standard. See Kristin

                                      7
  Saetveit, Note, Close Calls: Defining Courtroom Closures Under the

  Sixth Amendment, 68 Stan. L. Rev. 897, 916 (2016).

¶ 16   We need not pick a side because we conclude that even if we

  were to adopt the triviality standard, the closure here was not

  trivial. Though the closure was brief, it completely excluded the

  public, the attorneys, and defendant from an interaction between

  the court and the jury concerning a matter of law. The closure thus

  compromised two purposes of the right to a public trial — because

  no member of the public was present, the public could not (1) see

  that the defendant was tried fairly, or (2) “remind the . . . [court] of

  [its] responsibility to the accused and the importance of [its]

  function[].” Peterson, 85 F.3d at 43. To ensure a fair trial, the

  transparency of the proceedings must extend not only to the words

  spoken, but also to the presence and the demeanor of the

  participants. When the courtroom is closed, their demeanor is

  hidden.

¶ 17   The People’s cited cases, in which courts found no violation of

  the Sixth Amendment because closures of the courtroom were

  inadvertent, partial, or necessitated by administrative concerns, do

  not persuade us that the courtroom closure here could be

                                      8
  considered trivial. See United States v. Perry, 479 F.3d 885, 890

  (D.C. Cir. 2007) (partial); United States v. Ivester, 316 F.3d 955, 960

  (9th Cir. 2003) (administrative); Braun v. Powell, 227 F.3d 908, 918

  (7th Cir. 2000) (partial); Al-Smadi, 15 F.3d at 154 (inadvertent);

  State v. Lindsey, 632 N.W.2d 652, 660 (Minn. 2001) (partial). None

  of these three characteristics was present here.

¶ 18   The People suggest that, if we do not affirm, we should remand

  the case to the trial court for a hearing on the Waller elements. But

  the record clearly demonstrates that the elements were not met,

  and we decline to waste judicial resources on remand. See Hassen,

  ¶ 12; People in Interest of G.B., 2018 COA 77, ¶ 52.

¶ 19   Because the closure of the courtroom was total, intentional,

  and unjustified, we conclude that defendant’s Sixth Amendment

  right was violated. Thus, we are compelled to reverse his conviction

  and remand the case for a new trial. See Weaver, 582 U.S. at ___,

  137 S. Ct. at 1910 (“[I]n the case of a structural error where there is

  an objection at trial and the issue is raised on direct appeal, the

  defendant generally is entitled to ‘automatic reversal’ regardless of

  the error’s actual ‘effect on the outcome.’” (quoting Neder v. United

  States, 527 U.S. 1, 7 (1999))).

                                     9
                          III. Evidentiary Rulings

¶ 20   Defendant also contends that the court committed three

  evidentiary errors. Because these issues may arise on remand, we

  briefly address them.

¶ 21   “A trial court has broad discretion in ruling on the

  admissibility of evidence.” People v. Beilke, 232 P.3d 146, 149

  (Colo. App. 2009). A trial court thus abuses its discretion only

  when its evidentiary ruling is manifestly arbitrary, unreasonable,

  unfair, or is based on a misunderstanding or misapplication of the

  law. People v. Thompson, 2017 COA 56, ¶ 91.

¶ 22   Evidence is relevant if it has any tendency to make the

  existence of a fact of consequence more or less probable. CRE 401.

  All relevant evidence is admissible, except that proscribed by rule or

  law. CRE 402. CRE 403 permits exclusion of relevant evidence if

  its probative value is substantially outweighed by the danger of

  unfair prejudice, but because Rule 403 strongly favors

  admissibility, we afford evidence “the maximum probative value

  attributable by a reasonable fact finder and the minimum unfair

  prejudice to be reasonably expected.” People v. Gibbens, 905 P.2d



                                    10
  604, 607 (Colo. 1995); People v. James, 117 P.3d 91, 94 (Colo. App.

  2004).

       A. Exclusion of Evidence that Defendant Had Been Upset

¶ 23   A law enforcement officer testified for the People that in all of

  their interactions, defendant had never seemed upset or remorseful

  about the victim’s death. Defendant sought to elicit rebuttal

  testimony, from a different officer, that defendant had been upset

  on at least one occasion and “[t]here were times when he was

  crying.” The People argued, and the court agreed, that the

  testimony should be excluded as self-serving hearsay.

¶ 24   Defendant contends that because the prosecution opened the

  door to his demeanor, and the testimony did not involve hearsay, he

  was entitled to elicit this testimony as part of his right to present a

  defense. We agree that exclusion of the testimony was an abuse of

  discretion because the court misapplied the law in concluding that

  the evidence was hearsay.

¶ 25   Hearsay is an out-of-court statement offered to prove the truth

  of the matter asserted. CRE 801(c). Nonverbal conduct may

  constitute hearsay if the conduct is intended to be communicative.

  CRE 801(a)(2). But a person’s demeanor is generally not hearsay.

                                     11
  See Markgraf v. State, 12 P.3d 197, 199 (Alaska Ct. App. 2000)

  (holding that a person’s apparent mental state is not routinely

  considered hearsay; collecting cases); see also People v. Acosta,

  2014 COA 82, ¶ 33 (“In Colorado, it is well established that a lay

  witness may give a summary opinion of another person’s

  behavior . . . or state of mind” if the witness personally observed the

  person’s behavior.).

          B. Admission of Victim’s Statements Under CRE 807

¶ 26   Defendant contends that the court abused its discretion in

  admitting statements made by the victim to two witnesses prior to

  her death under the residual hearsay exception, which permits

  admission of hearsay evidence with circumstantial guarantees of

  trustworthiness. See CRE 807. He specifically argues that the

  prosecution did not meet its burden to prove the trustworthiness of

  the victim’s statements that (1) she “was being abused” by

  “[defendant],” in response to a friend’s question about her black eye

  and marks on her arms; and (2) defendant “had tried strangling

  her,” in response to another friend’s question about marks on her

  neck.



                                    12
¶ 27   The trial court found sufficient indicia of reliability for the

  victim’s statements, which were testified to by friends who had

  personally witnessed defendant physically or verbally abusing the

  victim. The court found that the statements were nontestimonial,

  not motivated by a police investigation, and prompted by questions

  based on personal observations of the victim’s bodily injuries. It

  further found that one of the witnesses “was able to vividly recall

  the details of the abuse.” The court did not abuse its discretion in

  finding that these statements were sufficiently trustworthy. See

  People v. Jensen, 55 P.3d 135, 139 (Colo. App. 2001) (holding that

  trustworthiness could be determined from the nature and character

  of the statements, the relationship of the parties, the probable

  motivation of the declarant in making the statements, and the

  circumstances under which the statements were made).

         C. Admission of Other Acts Toward Intimate Partners

¶ 28   After a pretrial hearing, the trial court ruled that two witnesses

  — defendant’s ex-wife and his former girlfriend — could testify

  about defendant’s specific acts while in their individual

  relationships.

¶ 29   Specifically, defendant’s ex-wife would testify that

                                     13
              in 1991, defendant assaulted her and told police officers

               that “if anybody here shows up dead, I’ll be the one who

               did it”;

              he hit her on the head and the stomach on October 9,

               1993; and

              he threw her on the floor and punched her in the face on

               December 17, 1996.

  These allegations were documented in contemporaneous police

  reports.

¶ 30   Defendant’s ex-girlfriend would testify that

              defendant used a bicycle wheel to break her car window

               on August 23, 2005;

              he put his hands around her neck and covered her

               mouth in September 2005; and

              he told her about a past girlfriend who “ended up dead.”

  The broken car window was documented in a contemporaneous

  police report, and the ex-girlfriend reported the other incidents to

  police when she was interviewed in 2013.

¶ 31   Section 18-6-801.5(3), C.R.S. 2017, provides that evidence of

  other transactions is admissible in domestic violence cases like this
                                      14
  one “to show a common plan, scheme, design, identity, modus

  operandi, motive, or guilty knowledge or for some other purpose.”

  Upon an offer of proof, the court may admit such evidence after

  considering “whether the probative value of the evidence . . . is

  substantially outweighed by the danger of unfair prejudice to the

  defendant, confusion of the issues, or misleading of the jury . . . .”

  § 18-6-801.5(4).

¶ 32   The trial court held a hearing and issued a detailed order

  regarding the admissibility of this other act evidence. The court

  considered section 18-6-801.5 and CRE 404(b) and found that

  (1) defendant had committed the acts and (2) the evidence was

  related to a material fact with logical relevance independent of the

  prohibited inference of defendant’s bad character. The court

  concluded that the probative value of the evidence was not

  substantially outweighed by the danger of unfair prejudice, and was

  admissible. At trial, it provided an appropriate instruction limiting

  consideration of the evidence to only defendant’s motive, his intent,

  and whether he acted in accordance with a common plan. The

  record supports the court’s findings and conclusions.

                              IV. Conclusion

                                     15
¶ 33   We reverse defendant’s conviction and remand the case for a

  new trial.

       JUDGE WEBB and JUDGE FOX concur.




                                  16
