Peo v. Al-Khammasi

21CA1967 Peo v Al-Khammasi 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1967

El Paso County District Court No. 18CR4614

Honorable Jann P. DuBois, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Karrar Noaman Al-Khammasi,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE WELLING

Yun and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney

General, Daniel R. Magalotti, Assistant Attorney General Fellow, Denver,

Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Karrar Noaman Al-Khammasi, appeals his

judgment of conviction for six felonies and one misdemeanor. We

affirm.

I. Background

¶ 2 After a night out drinking, Al-Khammasi was intoxicated, and

upon leaving the bar, he became “aggressive” toward another bar

patron. He got into an Uber to go home but began arguing with the

driver about whether she was going to give him a ride and at that

point purportedly told the driver she “would regret it.”

¶ 3 Al-Khammasi then got out of the car and walked down the

street, and as he was walking, he began shooting a gun into the air.

At least one witness called 911, and multiple officers responded.

Officer C.D. was the first responding officer to locate Al-Khammasi,

and he got out of his patrol car alone to confront Al-Khammasi.

¶ 4 The exact details of the events that followed are unclear, but

evidence presented at trial supports that Officer C.D. and

Al-Khammasi each shot at the other and that both were injured as

a result.

¶ 5 Corporal Ronald Carter, who arrived right as the exchange of

gunfire between Al-Khammasi and Officer C.D. occurred, testified

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that, when he arrived, he could see Al-Khammasi illuminated, likely

by Officer C.D.’s flashlight. Evidence was also presented that

Officer C.D. had the bright “takedown lights” on his patrol car

illuminated and pointed at Al-Khammasi at the time of the

shooting. Soon after he arrived, Corporal Carter saw Al-Khammasi

“reach[] for his right side . . . waistband area.” He didn’t, however,

see Al-Khammasi with a gun at that point. According to Corporal

Carter, “[o]nce [he] saw [Al-Khammasi] reaching, it went dark,” and

he then heard two gunshots “pretty close together.” After Corporal

Carter heard gunfire, he saw Officer C.D. and Al-Khammasi fall to

the ground. Corporal Carter then approached Al-Khammasi and

fired his gun at him because Al-Khammasi still had a “gun in his

hand.” According to another officer, Al-Khammasi and Officer C.D.

were about ten to twenty feet away from one another when they

were found.

¶ 6 Officer C.D. was shot in the left side of the head and sustained

a brain injury that caused him to lose motor function in his right

arm (the arm he used to shoot with). Though gravely injured,

Officer C.D. survived. Al-Khammasi sustained non-life-threatening

injuries.

3

¶ 7 Investigators later found seven shell casings between the bar

and the area where the shooting occurred. Investigators didn’t find

evidence that Al-Khammasi had shot at Officer C.D. while Officer

C.D. was in his patrol car.

¶ 8 The People charged Al-Khammasi with the following eight

criminal offenses: attempt to commit murder in the first degree

(extreme indifference), attempt to commit murder in the first degree

(after deliberation), assault in the first degree (deadly weapon),

assault in the first degree (peace officer), assault in the first degree

(extreme indifference), felony menacing, prohibited use of a weapon

(reckless with gun), and possession of a weapon by a previous

offender (POWPO). Al-Khammasi proceeded to a jury trial on all

counts except POWPO, which had been bifurcated at

Al-Khammasi’s request. At trial, Al-Khammasi raised the

affirmative defenses of self-defense and voluntary intoxication.

¶ 9 The jury acquitted Al-Khammasi of attempt to commit murder

in the first degree (extreme indifference) but convicted him of the

remaining six charges presented to them at trial. After the jury

returned its verdict, Al-Khammasi pleaded guilty to the POWPO

charge.

4

II. Analysis

¶ 10 Al-Khammasi raises five arguments on appeal. First, he

contends that the trial court erred by instructing the jury on the

initial aggressor exception to self-defense. Second, he contends

that the trial court erred by instructing the jury on the use of

“deadly” physical force in defense of person even though he wasn’t

charged with using “deadly” force because Officer C.D. had

survived. Third, Al-Khammasi contends that the trial court erred

by excluding his out-of-court statements. Fourth, he contends that

the trial court erred by admitting extrinsic character evidence

subject to CRE 404(b) without first performing the balancing test

set forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990), and

by not giving a limiting instruction to the jury. Fifth, he contends

that we should review Officer C.D.’s and Corporal Carter’s internal

police records to determine whether the trial court erred by not

disclosing some or all of the documents to the defense.

¶ 11 We aren’t persuaded that the court committed reversible error

on any of the grounds advanced by Al-Khammasi, so we affirm his

convictions. We also affirm the trial court’s decision to deny

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Al-Khammasi access to any documents in Officer C.D.’s or Corporal

Carter’s internal police records.

A. Whether the Trial Court Erred by Giving the Initial Aggressor

Instruction

¶ 12 Al-Khammasi contends that the trial court plainly erred by

instructing the jury on the initial aggressor exception to self-

defense. According to Al-Khammasi, there was “no evidence” that

Al-Khammasi was the initial aggressor, and by giving the

instruction, the trial court lowered the prosecution’s burden of

proof and violated his right to present a defense. We disagree.

1. Additional Facts

¶ 13 Although Al-Khammasi didn’t testify, defense counsel argued

in closing arguments that he acted in self-defense because he didn’t

know Officer C.D. was a police officer, so “when he saw a shining

spotlight coming at him from a block away and a man get out with

a gun, his gut reaction was to protect his own life.” Defense

counsel further argued as follows:

• Al-Khammasi reasonably perceived a threat because

“Officer [C.D.] got out of his car with a gun and

immediately aimed.”

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• Officer C.D. shot Al-Khammasi first because Officer C.D.

was right-handed and, after being shot in the left side of

his brain, he would have lost all motor function in his

right arm and, therefore, couldn’t have shot

Al-Khammasi afterward.

• Al-Khammasi wasn’t the initial aggressor because he was

shooting his gun randomly in the air, not at another

person or at Officer C.D.’s car as he drove up.

¶ 14 At trial, the court instructed the jury on self-defense as an

affirmative defense (Instruction 23) and as an element-negating

traverse (Instruction 24). The initial aggressor exception to self-

defense was included in both instructions.

¶ 15 Instruction 23 read, in relevant part, as follows:

The defendant was legally authorized to use

deadly physical force upon another person

without first retreating if . . .

he was not the initial aggressor, or, if he was

the initial aggressor, he had withdrawn from

the encounter and effectively communicated to

the other person his intent to do so, and the

other person nevertheless continued or

threatened the use of unlawful physical force.

¶ 16 Similarly, Instruction 24, read in relevant part, as follows:

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[A] person is not justified in using deadly

physical force if:

he is the initial aggressor; except that his use

of deadly physical force upon another person

under the circumstances is justifiable if he

withdraws from the encounter and effectively

communicates to the other person his intent to

do so, but the other person nevertheless

continues or threatens the use of unlawful

physical force.

¶ 17 Al-Khammasi didn’t object to the inclusion of the initial

aggressor language in either instruction.

2. Standard of Review and Legal Principles

¶ 18 “A trial court may instruct the jury on an exception to an

asserted affirmative defense if ‘some evidence’ supports the

exception.” People v. Roberts-Bicking, 2021 COA 12, ¶ 31. In the

context of the initial aggressor exception to self-defense, there is

“some evidence” if the evidence is such that it “would support a

reasonable inference that the accused was the initial aggressor.” Id.

If evidence is presented that “suggests the defendant initiated the

physical conflict by using or threatening imminent use of unlawful

physical force” then the initial aggressor instruction is warranted.

Id. at ¶ 33.

8

¶ 19 We review de novo whether there is sufficient evidence to

“support[] an instruction on the initial aggressor exception to self-

defense.” People v. Whiteaker, 2022 COA 84, ¶ 34, rev’d on other

grounds, 2024 CO 25. A trial court doesn’t err if the instructions

given “adequately inform the jury of the law.” Galvan v. People,

2020 CO 82, ¶ 40 (quoting People v. Vanrees, 125 P.3d 403, 410

(Colo. 2005)). If a defendant fails to object to a jury instruction,

then we review for plain error. People v. Roadcap, 78 P.3d 1108,

1113 (Colo. App. 2003). A trial court plainly errs if the error is

obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 14.

3. The Trial Court Didn’t Err

¶ 20 There was sufficient evidence presented at trial to warrant the

trial court including the initial aggressor exception as part of its

self-defense instructions.

¶ 21 To begin, the evidence presented at trial supported that the

police were called to the scene based on reports that Al-Khammasi

was shooting a gun. Further, although Corporal Carter testified

that he didn’t initially see Al-Khammasi with a gun when he

arrived, Corporal Carter saw Al-Khammasi reach toward his

waistband right before he heard shots. This aligns with testimony

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from a different witness that she had seen Al-Khammasi with a gun

near his waistband. These facts taken together offer some evidence

that Al-Khammasi threatened imminent and unlawful force against

Officer C.D.

¶ 22 In asserting that there isn’t evidence that he was the initial

aggressor, Al-Khammasi alludes to the argument he made at trial

that, because Officer C.D. was shot in the left side of his head

causing a loss in motor function to his right arm (his shooting arm),

Officer C.D. must have shot Al-Khammasi first and therefore

Al-Khammasi couldn’t have been the initial aggressor. Even if we

were persuaded that the evidence undoubtedly established that

Officer C.D. shot first — which we aren’t — that doesn’t mean that

Al-Khammasi couldn’t have been the initial aggressor. Such a

contention improperly conflates being the first shooter with being

the initial aggressor. At the time he shot Al-Khammasi, Officer C.D.

could have been responding to Al-Khammasi’s threat of “imminent

use of unlawful physical force,” making Al-Khammasi the initial

aggressor. Roberts-Bicking, ¶ 33 (citing Castillo v. People, 2018 CO

62, ¶¶ 43, 50-51). The bottom line is that, regardless of who shot

10

first, there is at least some evidence that Al-Khammasi was the

initial aggressor.

¶ 23 Because there is some evidence that Al-Khammasi was the

initial aggressor, the trial court didn’t err — much less plainly err —

by including the initial aggressor exception in the self-defense

instructions.

B. Whether the Trial Court Erred by Giving a Deadly Physical

Force Instruction to the Jury

¶ 24 Al-Khammasi contends that the trial court plainly erred by

giving the jury the self-defense instruction for use of deadly force

because Al-Khammasi didn’t kill Officer C.D. We agree with the

People that this error wasn’t plain and thus doesn’t require reversal.

1. Standard of Review

¶ 25 A “court has substantial discretion in formulating the jury

instructions, so long as they are correct statements of the law and

fairly and adequately cover the issues presented.” People v. Nerud,

2015 COA 27, ¶ 35 (quoting People v. Gallegos, 226 P.3d 1112,

1115 (Colo. App. 2009)). But the trial court must not give the jury

an instruction that misstates the law. See, e.g., People v. Mandez,

997 P.2d 1254, 1270 (Colo. App. 1999). We review whether an

11

instruction “accurately informed the jury of the governing law” de

novo. People v. Paglione, 2014 COA 54, ¶ 45.

¶ 26 If a defendant fails to preserve an error, we review for plain

error. Hagos, ¶ 14. Under the plain error standard, the error must

be obvious and substantial, and we reverse “only if the error ‘so

undermined the fundamental fairness of the trial itself so as to cast

serious doubt on the reliability of the judgment of conviction.’” Id.

(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

2. The Trial Court Erred

¶ 27 After approval by the prosecutor and defense counsel, the trial

court gave the jury two instructions relating to self-defense,

Instruction 23 and Instruction 24. Both Instruction 23 and

Instruction 24 instructed the jury on the use of deadly physical

force in defense of person.

¶ 28 The People concede, and we agree, that the trial court

obviously erred by instructing the jury on the use of deadly physical

force rather than non-deadly physical force. Our criminal code

differentiates between deadly and non-deadly physical force in

defense of person. § 18-1-704(1), (2)(a)-(c), C.R.S. 2023. Deadly

physical force is defined as “force, the intended, natural, and

12

probable consequence of which is to produce death, and which

does, in fact, produce death.” § 18-1-901(3)(d), C.R.S. 2023

(emphasis added). For this reason, divisions of this court have held

that it’s error for the trial court to give the jury a deadly physical

force in defense of person instruction when the victim didn’t die.

See People v. Ferguson, 43 P.3d 705, 707-08 (Colo. App. 2001)

(holding that the trial court’s instructional error wasn’t harmless

because the erroneous instruction permitted the jury “to hold [the]

defendant to a higher standard in establishing self-defense than is

required by law”); People v. Ramirez, 2019 COA 16, ¶ 27 (holding

that giving the deadly force instruction where the victim survived

was obvious error).

¶ 29 Because both Instruction 23 and Instruction 24 instructed the

jury on the use of deadly physical force in defense of person rather

than non-deadly physical force, the trial court obviously erred. Now

we turn to whether this obvious error merits reversal.

3. The Trial Court’s Error Didn’t Prejudice Al-Khammasi

¶ 30 Despite the trial court’s obvious error, we can’t discern a path

in which the jury rejected Al-Khammasi’s theory of self-defense

13

based on language erroneously included in either Instruction 23 or

Instruction 24.

a. Instruction 23

¶ 31 We begin our analysis with the similarities and differences

between Instruction 23 and the pattern criminal jury instructions

for the use of non-deadly physical force in defense of person.

¶ 32 Instruction 23 related to self-defense as an affirmative defense

and read as follows:

The evidence presented in this case has raised

the affirmative defense of “deadly physical

force in defense of person,” as a defense to

Criminal Attempt to Commit Murder [in] the

First Degree (After Deliberation), Assault in the

First Degree (Deadly Weapon), First Degree

Assault (Peace Officer) and Menacing

The defendant was legally authorized to use

deadly physical force upon another person

without first retreating if:

1. he used that deadly physical force in order

to defend himself from what he reasonably

believed to be the use or imminent use of

unlawful physical force by that other person,

and

2. he reasonably believed a lesser degree of

force was inadequate, and

3. he had a reasonable ground to believe, and

did believe, that he or another person was in

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imminent danger of being killed or of receiving

great bodily injury, and

4. he was not the initial aggressor, or, if he

was the initial aggressor, he had withdrawn

from the encounter and effectively

communicated to the other person his intent

to do so, and the other person nevertheless

continued or threatened the use of unlawful

physical force.

(Emphasis added.) Instruction 23 closely aligns with the pattern

instruction “Use of Deadly Physical Force (Defense of Person).”

COLJI-Crim. H:12 (2023).

¶ 33 There is also a pattern instruction for the “Use of Non-Deadly

Physical Force (Defense of Person).” COLJI-Crim. H:11 (2023). This

pattern instruction appears to be identical to Instruction 23, except

as italicized below:

The defendant was legally authorized to use

physical force upon another person without

first retreating if:

1. he [she] used that physical force in order to

defend himself [herself] or a third person from

what he [she] reasonably believed to be the use

or imminent use of unlawful physical force by

that other person . . . , and

2. he [she] used a degree of force which he

[she] reasonably believed to be necessary for

that purpose, and

. . . .

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4. he [she] was not the initial aggressor, or, if

he [she] was the initial aggressor, he [she] had

withdrawn from the encounter and effectively

communicated to the other person his [her]

intent to do so, and the other person

nevertheless continued or threatened the use

of unlawful physical force.

COLJI-Crim. H:11 (emphasis added).

¶ 34 The jury instructions for attempt to commit murder in the first

degree (after deliberation), assault in the first degree (deadly

weapon), assault in the first degree (peace officer), and felony

menacing contained the element that “the defendant’s conduct was

not legally authorized by the affirmative defense in Instruction 23.”

¶ 35 According to both Instruction 23 and COLJI-Crim. H:11, the

jury must reject the affirmative defense of self-defense if the People

disprove, beyond a reasonable doubt, any one of the numbered

conditions within the self-defense instruction.

¶ 36 Thus, based on Instruction 23, the jury could have rejected

Al-Khammasi’s claim of self-defense if it found that any one of the

following were not true:

1. [Al-Khammasi] used that deadly physical

force in order to defend himself from what he

reasonably believed to be the use or imminent

use of unlawful physical force by that other

person . . .

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2. [Al-Khammasi] reasonably believed a lesser

degree of force was inadequate . . .

3. [Al-Khammasi] had a reasonable ground to

believe, and did believe, that he or another

person was in imminent danger of being killed

or of receiving great bodily injury . . .

4. [Al-Khammasi] was not the initial

aggressor, or, if he was the initial aggressor, he

had withdrawn from the encounter and

effectively communicated to the other person

his intent to do so, and the other person

nevertheless continued or threatened the use

of unlawful physical force.

¶ 37 Except for the inclusion of the word “deadly” in the first

condition of the instruction, condition one and condition four of

Instruction 23 are the same as the pattern instruction for the Use of

Non-Deadly Physical Force (Defense of Person).

1

See COLJI-Crim.

H:11. Although erroneous, the inclusion of the word “deadly” in the

first condition didn’t lower the People’s burden of proof with respect

to disproving self-defense because whether Al-Khammasi used

1

COLJI-Crim. H:11 (2023) also includes protection of another

person, specifically stating “in order to defend himself or a third

person.” (Emphasis added.) Because there is no evidence that

Al-Khammasi was protecting a third person, this language is

irrelevant to our analysis.

17

deadly physical force wasn’t a condition that the People had to

disprove.

¶ 38 Thus, regardless of whether or not the jury received the proper

instruction, if the jury found beyond a reasonable doubt either that

Al-Khammasi didn’t reasonably believe that he faced the use or

imminent use of unlawful force by Officer C.D. (condition one) or

that he was the initial aggressor (condition four), the jury would

have been required to reject Al-Khammasi’s affirmative defense of

self-defense.

¶ 39 Put differently, for the erroneous instruction to have affected

the outcome of the verdict, the jury would have had to reject

Al-Khammasi’s self-defense theory based solely on either condition

two or three of Instruction 23. Given the evidence presented about

the events surrounding the shooting, however, it isn’t plausible that

the jury rejected self-defense on either of these grounds.

¶ 40 We first address condition two, that “[Al-Khammasi]

reasonably believed a lesser degree of force was inadequate.”

Evidence presented at trial established that Officer C.D. aimed a

gun at Al-Khammasi and that Al-Khammasi was some distance

from Officer C.D. Because Al-Khammasi faced a deadly weapon

18

from a distance, it simply isn’t plausible that the jury rejected self-

defense on the basis that he didn’t reasonably believe that a lesser

degree of force was inadequate. Had Al-Khammasi been otherwise

justified in using self-defense, he wouldn’t have had any other

option to meet the threat he faced given (1) his distance from Officer

C.D. and (2) that Officer C.D. had a gun.

¶ 41 We next address condition three, that “[Al-Khammasi] had a

reasonable ground to believe, and did believe, that he or another

person was in imminent danger of being killed or of receiving great

bodily injury.” Again, under Al-Khammasi’s theory of self-defense,

Officer C.D. aimed a gun at him. Given that a gun is a deadly

weapon, it isn’t plausible that the jury rejected self-defense on the

basis that Al-Khammasi didn’t believe that he was in danger of

being killed or gravely injured.

19

¶ 42 Thus, we can’t conclude that the jury rejected self-defense

based on either condition two or three of Instruction 23.

2

b. Instruction 24

¶ 43 For similar reasons, the erroneous language in Instruction 24

doesn’t undermine the reliability of the jury’s verdict.

¶ 44 Instruction 24 related to self-defense as an element-negating

traverse and read as follows:

The evidence presented in this case has raised

the question of self-defense with respect to

Criminal Attempt to Commit Murder in the

First Degree (Extreme Indifference), and

Assault in the First Degree (Extreme

Indifference).

A person is justified in using deadly physical

force upon another person without first

retreating in order to defend himself or a third

person from what he reasonably believes to be

the use or imminent use of unlawful physical

force by that other person if he reasonably

believes a lesser degree of force is inadequate,

and:

2

We don’t reach the People’s argument that because the jury found

that Al-Khammasi knew or should have known that Officer C.D.

was a peace officer engaged in the performance of his duties, the

jury necessarily rejected self-defense on the basis that

Al-Khammasi didn’t face unlawful force. We don’t need to go that

far to conclude that the trial court didn’t plainly err. It’s enough

that any error doesn’t undermine our confidence in his conviction.

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he has a reasonable ground to believe, and

does believe, that he or another person is in

imminent danger of being killed or of receiving

great bodily injury

However, a person is not justified in using

deadly physical force if:

he is the initial aggressor; except that his use

of deadly physical force upon another person

under the circumstances is justifiable if he

withdraws from the encounter and effectively

communicates to the other person his intent to

do so, but the other person nevertheless

continues or threatens the use of unlawful

physical force.

(Emphasis added.) Instruction 24 largely tracks the pattern

instruction for “Use of Deadly Physical Force (Defense of Person —

Offense With a Mens Rea of Recklessness, Extreme Indifference, or

Criminal Negligence).” COLJI-Crim. H:14 (2023).

¶ 45 The pattern instruction for the “Use of Non-Deadly Physical

Force (Defense of Person — Offense With a Mens Rea of

Recklessness, Extreme Indifference, or Criminal Negligence),”

COLJI-Crim. H:13 (2023), is consistent with Instruction 24, except

as italicized in the following:

A person is justified in using physical force

upon another person without first retreating in

order to defend himself [herself] [a third

person] from what he [she] reasonably believes

21

to be the use or imminent use of unlawful

physical force by that other person, and he

[she] may use a degree of force which he [she]

reasonably believes to be necessary for that

purpose.

However, a person is not justified in using

physical force if:

. . . .

he [she] is the initial aggressor; except that his

[her] use of physical force upon another person

under the circumstances is justifiable if he

[she] withdraws from the encounter and

effectively communicates to the other person

his [her] intent to do so, but the other person

nevertheless continues or threatens the use of

unlawful physical force.

COLJI-Crim. H:13 (emphasis added).

¶ 46 As an element-negating traverse, the People didn’t have to

disprove Instruction 24 as an element of any of the charges against

Al-Khammasi. Still, an inaccuracy of the instruction is potentially

prejudicial because it may have affected the jury’s finding on

whether or not he acted with extreme indifference, a finding that

was critical to the elements of assault in the first degree (extreme

indifference).

¶ 47 Based on Instruction 24, the jury could have rejected

Al-Khammasi’s theory of self-defense if it found that any one of the

22

following was not true: (1) “he reasonably believe[d] a lesser degree

of force [was] inadequate”; (2) “he ha[d] a reasonable ground to

believe, and [did] believe, that he or another person [was] in

imminent danger of being killed or of receiving great bodily injury”;

or (3) that he wasn’t the initial aggressor and didn’t “withdraw[]

from the encounter and effectively communicate[] to [Officer C.D.]

his intent to do so.”

¶ 48 Again, excepting the use of the word deadly, the initial

aggressor portion of the instruction is the same as the pattern jury

instruction for the Use of Non-Deadly Physical Force (Defense of

Person — Offense With a Mens Rea of Recklessness, Extreme

Indifference, or Criminal Negligence). See COLJI-Crim. H:13.

Therefore, if the jury rejected self-defense on this basis, they would

have rejected the theory even if the proper instruction had been

given.

¶ 49 To summarize, for the erroneous instruction to have affected

the jury’s verdict, the jury would have had to have rejected self-

defense solely on the grounds that either (1) Al-Khammasi didn’t

“reasonably believe[] a lesser degree of force [was] inadequate” or (2)

Al-Khammasi didn’t have “reasonable ground[s] to believe, and [did]

23

believe, that he or another person [was] in imminent danger of

being killed or receiving great bodily injury.” As we explained in our

analysis of Instruction 23 in Part II.B.3.a above, Al-Khammasi faced

the use of a deadly weapon from a distance of more than ten feet.

Because of this, it isn’t plausible that the jury rejected self-defense

on either of these grounds.

¶ 50 Thus, we can’t conclude that the trial court’s error “cast

serious doubt on the reliability of the judgment of conviction” and,

therefore, the trial court didn’t plainly err. Hagos, ¶ 14 (quoting

Miller, 113 P.3d at 750).

C. Al-Khammasi’s Hearsay Statements

¶ 51 While at the hospital for treatment of his injuries,

Al-Khammasi made self-serving hearsay statements that the court

excluded at trial. Al-Khammasi contends that the trial court

reversibly erred by excluding his hearsay statements because there

isn’t a rule against the admission of self-serving hearsay statements

that are otherwise admissible under a hearsay exception.

Al-Khammasi argues that his hearsay statements were admissible

under (1) the excited utterance exception (CRE 803(2)); (2) the then

existing mental, emotional, or physical condition exception (CRE

24

803(3)); or (3) the residual hearsay exception (CRE 807). While we

agree that the trial court erred to the extent that it excluded his

statements as self-serving hearsay, we conclude that the trial court

didn’t abuse its discretion by excluding the statements for failing to

meet any of the proffered hearsay exceptions.

1. Additional Facts

¶ 52 A few hours after the shooting, an officer who wasn’t on the

scene of the shooting, Sergeant Matthew McLain, went to the

hospital to speak with Al-Khammasi. Sergeant McLain testified that

he waited in Al-Khammasi’s hospital room after other officers had

been unsuccessful in their attempts to speak with him. While in

his hospital room, Sergeant McLain recorded an approximately

seven-minute-long conversation with Al-Khammasi.

¶ 53 The conversation starts with a casual exchange in which

Sergeant McLain asks Al-Khammasi basic biographical information,

such as his address. Approximately three minutes into the

recorded conversation, Sergeant McLain asks Al-Khammasi if he

remembers what happened that night. Al-Khammasi responds by

asking Sergeant McLain to tell him what had occurred. Sergeant

McLain tells him that he “shot a cop.” From what we can discern

25

from the audio clip, after this information was relayed to

Al-Khammasi, the following occurred:

• Approximately twenty-eight seconds after being told that

he had shot a police officer, Al-Khammasi states,

“[S]omebody shot me. I never shot a cop. I love cops.”

• Approximately thirty-six seconds after being told that he

had shot a police officer, Al-Khammasi states, “I not shot

cop.” When he makes this statement, there appears to

be a change in the inflection of his voice, as he begins to

sound frustrated.

• Approximately forty seconds after being told that he had

shot a police officer, Al-Khammasi asks whether the

officer died, and Sergeant McLain responds by saying he

is “probably going to.”

• Approximately four seconds after being told the officer

would probably die and forty-seven seconds after being

told that he had shot a police officer, Al-Khammasi,

sounding upset, states, “[N]o way. No please. Swear to

God. Promise.”

26

• Approximately thirty-nine seconds after being told the

officer would probably die and eighty-two seconds after

being told that he had shot a police officer, Al-Khammasi

begins crying and says, “[C]ome on brother. I’m sorry. I

swear to God . . . please tell me.”

¶ 54 Al-Khammasi filed a notice of intent to introduce his

statements from his conversation with Sergeant McLain.

Al-Khammasi argued that these statements were relevant because

they (1) “put into context the several statements that the State has

introduced” and “not allowing that information would skew the

evidence in this case and intentionally mislead the jury about how

[Al-Khammasi] knows anything about the incident”; (2) “show

[Al-Khammasi’s] state of mind when he heard the news that the

person he shot was a police officer,” preventing the jury from being

“intentionally” misled; and (3) rebut the inference created by

statements introduced by the People that “he intentionally tried to

kill [Officer C.D].” In his notice of intent, Al-Khammasi argued that

these statements, though self-serving hearsay, were admissible

under four hearsay exceptions: attacking and supporting credibility

of declarant (CRE 806), excited utterance (CRE 803(2)), then

27

existing mental, emotional, or physical condition (CRE 803(3)), and

the residual exception (CRE 807).

¶ 55 Before Sergeant McLain’s testimony, the trial court heard the

parties’ arguments regarding the admissibility of Al-Khammasi’s

statements to Sergeant McLain. The People argued that (1) the

statements should be excluded as self-serving hearsay; (2) the time

delay between the shooting and the statements precluded the

statements from falling under the “state of mind” (then existing

mental, emotional, and physical condition) exception to hearsay;

and (3) the excited utterance exception didn’t apply because

Al-Khammasi’s statements were in response to questions, and the

startling event was the shooting, not being told that he had shot a

police officer. Defense counsel argued that the startling event was

Al-Khammasi being told that he had shot a police officer.

¶ 56 After argument on the issue, the trial court excluded

Al-Khammasi’s statements, ruling as follows:

The Court is not going to permit those

statements. They are self-serving hearsay.

The Court finds there is no guarantee of

trustworthiness; that they don’t fit into the

exception of excited utterance or state of mind

exception. Further, at this point [d]efense

can’t advise the Court whether or not Mr.

28

Al[-]Khammasi was under the influence of any

anesthesia or pain medication when those

statements were made. If he was under those

medications, that clearly would cut against

any trustworthiness at that point in time, but

even taking that argument aside, the Court

finds those are all self-serving hearsay, so I

would deny that request. They don’t fit under

the exceptions. They weren’t made right after

the startling event. And the Court doesn’t find

being told by a police officer that’s questioning

you to be a startling event or would qualify as

a startling event.

2. The Trial Court Didn’t Abuse its Discretion by Excluding the

Statements

¶ 57 Although the trial court erred by excluding Al-Khammasi’s

statements on the basis that they were self-serving hearsay,

because the trial court didn’t abuse its discretion by finding that

the exceptions invoked by Al-Khammasi didn’t apply, the trial court

didn’t abuse its discretion by excluding the statement.

¶ 58 “We review a trial court’s evidentiary rulings for an abuse of

discretion.” People v. Abdulla, 2020 COA 109M, ¶ 61. “A trial court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or if it misapplies the law.” Id.

¶ 59 When an issue is preserved, we apply the nonconstitutional

harmless error standard to a trial court’s evidentiary rulings.

29

People v. Martinez, 2020 COA 141, ¶ 27; see also Hagos, ¶¶ 9, 12.

Under this standard, “reversal is warranted if the error affects the

substantial rights of the parties, meaning ‘the error substantially

influenced the verdict or affected the fairness of the trial

proceedings.’” Martinez, ¶ 28 (quoting Zapata v. People, 2018 CO

82, ¶ 61) (citation omitted). If, however, counsel fails to preserve an

issue, we review for plain error. Hagos, ¶ 14.

¶ 60 We first address the trial court’s ruling that Al-Khammasi’s

statements weren’t admissible because they were self-serving

hearsay. To the extent that the trial court relied on the self-serving

nature of the statements to exclude them, the trial court erred.

¶ 61 Hearsay is an out-of-court statement “offered in evidence to

prove the truth of the matter asserted.” CRE 801(c). Unless it falls

under an exception within the Colorado Rules of Evidence or is

permitted by statute or procedural rules, hearsay is inadmissible.

CRE 802. “Colorado law has no per se rule excluding a defendant’s

self-serving hearsay statement.” People v. Vanderpauye, 2023 CO

42, ¶ 28. Rather, “a defendant’s self-serving hearsay statement

may be admissible if it satisfies a hearsay-rule exception in the

Colorado Rules of Evidence.” Id.

30

¶ 62 Thus, the trial court erred by excluding Al-Khammasi’s

hearsay statements on the grounds that they were self-serving. But

the trial court didn’t rely exclusively on the self-serving nature of

the hearsay statements to determine their admissibility. In its

ruling, the trial court also addressed why the statements failed to

meet certain hearsay exceptions. This is where we turn next.

¶ 63 Al-Khammasi contends that the trial court improperly

excluded his hearsay statements because they were admissible

under three exceptions to the rule against hearsay: (1) the excited

utterance exception; (2) the then existing mental, emotional, or

physical condition exception; and (3) the residual exception. We

address each exception in turn.

a. The Excited Utterance Exception to the Rule Against Hearsay

¶ 64 Al-Khammasi contends that his statements are admissible as

an excited utterance. An excited utterance is “[a] statement relating

to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition.”

CRE 803(2).

¶ 65 A statement is admissible as an excited utterance if the

statement’s proponent establishes that

31

(1) the event was sufficiently startling to render

normal reflective thought processes of the

observer inoperative; (2) the statement was a

spontaneous reaction to the event; and (3)

direct or circumstantial evidence exists to

allow the jury to infer that the declarant had

the opportunity to observe the startling event.

Vanderpauye, ¶ 42 (quoting People v. Pernell, 2014 COA 157, ¶ 31).

¶ 66 When determining whether an out-of-court statement was

spontaneous, courts consider

the lapse of time between the startling event or

condition and the . . . statement; whether the

statement was a response to an inquiry;

whether the statement is accompanied by

outward signs of excitement or emotional

distress; and the declarant’s choice of words to

describe the startling event or condition.

Id. at ¶ 45 (quoting Compan v. People, 121 P.3d 876, 882 (Colo.

2005)). Whether an event was startling enough to render a

defendant’s “normal reflective thought processes” inoperative may

be “consider[ed] . . . in concert with” the question of spontaneity.

Id.

¶ 67 When ruling on Al-Khammasi’s request to admit the

statements, the trial court observed that the statements “weren’t

made right after the startling event” and found that being told that

you shot an officer while the police are questioning you isn’t a

32

startling event. Based on the circumstances, this determination

wasn’t an abuse of discretion.

¶ 68 Relying on Vanderpauye, Al-Khammasi argues that Sergeant

McLain telling him that he shot a police officer was a startling

event. In Vanderpauye, ¶ 44, our supreme court concluded that it

was a startling event when the victim “suddenly woke up and

accused [the defendant] of raping her.” The court noted that, at

trial, the victim testified that the defendant “seemed ‘very startled’”

when she accused him. Id.

¶ 69 But the facts surrounding Al-Khammasi’s statement are

readily distinguishable from Vanderpauye. First, the statements

were made during the course of an ongoing conversation with a

police officer who was questioning him. Second, the delay between

being told he shot a police officer and his denial was approximately

twenty-eight seconds. We acknowledge that this isn’t a lot of time,

but also note that it isn’t immediate, as the defendant’s reaction in

Vanderpauye was. Third, Al-Khammasi didn’t sound upset until

approximately forty-seven seconds after he was told he shot a police

officer and approximately four seconds after he was told the officer

was “probably going to die,” and he didn’t start crying until

33

approximately eighty-two seconds after Sergeant McLain told him

he shot a police officer and approximately thirty-nine seconds after

Sergeant McLain told him the officer was “probably” going to die. It

isn’t an abuse of discretion to conclude that this delay, although

small, excluded the possibility that the reaction was spontaneous

and that his thought processes were rendered inoperative.

¶ 70 Because the trial court didn’t rule in an arbitrary or

unreasonable manner, it didn’t abuse its discretion by concluding

that Al-Khammasi’s statements didn’t fall under the excited

utterance exception.

b. The Then Existing Mental, Emotional, or Physical Condition

Exception to the Rule Against Hearsay

¶ 71 Another exception to the rule against hearsay Al-Khammasi

invokes is CRE 803(3), which provides for the admission of “[a]

statement of the declarant’s then existing state of mind, emotion,

sensation, or physical condition (such as intent, plan, motive,

design, mental feeling, pain, and bodily health).” This exception,

however, doesn’t encompass statements “of memory or belief to

prove the fact remembered or believed unless it relates to the

execution, revocation, identification, or terms of declarant’s will.”

34

CRE 803(3). For a statement to fall under the CRE 803(3)

exception, “the statement must describe the declarant’s mental or

emotional condition at the time the statement was made.” People v.

Manyik, 2016 COA 42, ¶ 87 (quoting People v. Haymaker, 716 P.2d

110, 113 n.3 (Colo. 1986)).

¶ 72 The trial court didn’t abuse its discretion by finding that

Al-Khammasi’s statements don’t fit under this exception because

they are simply a memory or belief that he didn’t shoot a police

officer, not statements describing his mental or emotional condition

at the time he stated that he “never shot a cop” and “love[s] cops.”

c. The Residual Exception to the Rule Against Hearsay

¶ 73 If a statement isn’t admissible under any specific exception, a

court may admit it if it determines that it’s admissible under CRE

807, the residual exception. CRE 807 provides that

[a] statement not specifically covered by [CRE]

803 or 804 but having equivalent

circumstantial guarantees of trustworthiness,

is not excluded by the hearsay rule, if the

court determines that (A) the statement is

offered as evidence of a material fact; (B) the

statement is more probative on the point for

which it is offered than any other evidence

which the proponent can procure through

reasonable efforts; and (C) the general

purposes of these rules and the interests of

35

justice will best be served by admission of the

statement into evidence.

¶ 74 The trial court rejected that Al-Khammasi’s statements

possessed the guarantees of trustworthiness required for admission

under this exception. In determining whether a statement is

trustworthy, courts look to the “nature and character of the

statement, the relationship of the parties, the probable motivation

of the declarant in making the statement, and the circumstances

under which the statement was made.” People v. McFee, 2016

COA 97, ¶ 19. Statements have been deemed trustworthy for CRE

807 purposes when they were spontaneously made to close friends

or relatives, id. at ¶¶ 20-21, and when they were “not motivated by

a police investigation,” People v. Lujan, 2018 COA 95, ¶ 27, rev’d on

other grounds, 2020 CO 26.

¶ 75 In this case, the trial court didn’t abuse its discretion by

finding that Al-Khammasi’s statements weren’t sufficiently

trustworthy because they were made (1) to a police officer who was

questioning him; (2) in response to the officer accusing him of a

crime; and (3) where he had a motivation to deny the officer’s

allegations. Given these circumstances, the trial court didn’t abuse

36

its discretion by concluding that Al-Khammasi’s statements didn’t

have “circumstantial guarantees of trustworthiness,” as required by

CRE 807.

¶ 76 Accordingly, the trial court didn’t abuse its discretion by ruling

that Al-Khammasi’s statements didn’t fall under any of the hearsay

exceptions that he advanced.

D. The Trial Court’s Admission of Evidence Without a Spoto

Analysis and Without a Limiting Instruction

¶ 77 Al-Khammasi next contends that the trial court erred by

admitting CRE 404(b) evidence without conducting the required

Spoto analysis and without giving a limiting instruction to the jury.

Specifically, Al-Khammasi contends that the trial court erred by

admitting (1) evidence that he “smirk[ed]” and “laughed” at police

officers in the hours after the shooting; (2) threatening statements

he made to Deputy Todd Hauck five days after the shooting while

still hospitalized; and (3) statements he made during recorded visits

once he was at the county jail.

¶ 78 We aren’t persuaded that the trial court reversibly erred.

37

1. Standard of Review and Legal Principles

¶ 79 Again, our review of a trial court’s evidentiary rulings,

including whether to admit other acts evidence, is for an abuse of

discretion. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009);

Abdulla, ¶ 61. “A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law.” People v. Garcia, 2021 COA 65, ¶ 45. We apply the

nonconstitutional harmless error standard to preserved issues

concerning a trial court’s evidentiary rulings. Martinez, ¶ 27; see

also Hagos, ¶ 12. Issues that are unpreserved are reviewed for

plain error. Hagos, ¶ 14.

¶ 80 CRE 404(b)(1) prohibits admission of “[e]vidence of any other

crime, wrong, or act . . . to prove a person’s character in order to

show that on a particular occasion the person acted in conformity

with the character.” But this type of evidence “may be admissible

for another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack

of accident.” CRE 404(b)(2).

¶ 81 CRE 404(b) only governs admissibility “when the trial court

determines that uncharged misconduct evidence supports an

38

improper inference of the defendant’s character.” Rojas v. People,

2022 CO 8, ¶ 43. Further, a defendant’s acts fall within CRE

404(b)’s reach only if they are extrinsic; “intrinsic acts fall[] outside

the Rule’s scope.” Id. at ¶ 44. An act is intrinsic if it “(1) . . .

directly prove[s] the charged offense or (2) . . . occurred

contemporaneously with the charged offense and facilitated the

commission of it.” Id. at ¶ 52. Evidence of intrinsic acts “are

exempt from [CRE] 404(b) because they are not ‘other’ crimes,

wrongs, or acts.” Id. If evidence is intrinsic, the trial court should

still “evaluate [its] admissibility . . . under [CRE] 401-403.” Id. If

an act is extrinsic and “suggests bad character” then admissibility

is governed by CRE 404(b), and the trial court must conduct a

Spoto analysis. Id. If, however, “extrinsic evidence does not suggest

bad character, [CRE] 404(b) does not apply, and admissibility is

governed by [CRE] 401-403.” Id. at ¶ 52.

¶ 82 With these principles in mind, we turn to the challenged

evidence.

2. Challenged Evidence

¶ 83 At trial, the People introduced multiple statements or acts by

Al-Khammasi that occurred after the shooting. We analyze each

39

challenged statement or act below in the order in which they

occurred.

a. Evidence that Al-Khammasi Laughed and Smirked at Officers

¶ 84 We begin by addressing Officer Katherine McFerran’s

testimony that Al-Khammasi laughed and smirked at officers while

in the hospital.

i. Additional Facts

¶ 85 At trial, Officer McFerran testified to an encounter with

Al-Khammasi that occurred in the hours following the shooting.

During her testimony, the People asked her to describe what

happened at the hospital, which drew an immediate objection from

defense counsel. The trial court held a bench conference at which

defense counsel stated,

[I]t’s my understanding that this witness is

going to testify that Mr. Al[-]Khammasi

laughed at her. We object to that testimony

under Rule 401 because it is not relevant.

Under Rule 403 because it is more prejudicial

than probative. It’s also speculative and

invites the jury to guess as to what the

meaning of it was.

Furthermore, it appeals to the passions of the

jury. Any negative connotation would appeal

to the passion of the sympathies to the jury

40

especially in light of the fact that it’s not

relevant to anything.

¶ 86 Defense counsel also informed the court that the incident

didn’t happen until approximately nine hours after the shooting.

The People argued that the evidence was relevant to Al-Khammasi’s

state of mind. The trial court overruled the objection, ruling that it

“goes to state of mind.”

¶ 87 Officer McFerran then testified that at the hospital “[t]here

[were] a lot of officers in uniform and out of uniform waiting” when

Al-Khammasi was “wheeled out in a wheelchair. And as he was

wheeled out through the hallway through [the officers] he kind of

smirked and laughed as he was wheeled past.”

ii. Analysis

¶ 88 Although the objection at trial was to relevance and unfair

prejudice, on appeal Al-Khammasi contends that the court “abused

its discretion by not deciding admissibility under Spoto and [CRE]

404(b).” It isn’t clear that Al-Khammasi’s objection at trial

preserved the contention he advances on appeal. Moreover, we

have trouble discerning how Al-Khammasi laughing and smirking

at police officers constitutes other acts evidence subject to CRE

41

404(b). But even assuming the trial court erred by admitting this

evidence, any error was harmless and doesn’t merit reversal.

¶ 89 We reach this conclusion for two reasons. First, the

challenged evidence was cumulative of properly admitted evidence

that Al-Khammasi bore animosity toward police officers. For

example, in video from Officer Daniel Patterson’s body-worn camera

that was admitted at trial, Al-Khammasi is being treated in the

emergency room and says, “I hate police” and appears to curse at

police officers. Patterson later testified that the “gist” of

Al-Khammasi’s statements were “that he didn’t care about the

police.” Al-Khammasi doesn’t challenge the admission of any of this

evidence on appeal.

¶ 90 Second, defense counsel’s thorough cross-examination of

Officer McFerran renders any error in the admission of this

evidence harmless. During cross-examination, defense counsel

asked Officer McFerran about her emotional state at the hospital,

her friendship with Officer C.D., whether she was aware of

Al-Khammasi’s condition or treatment at the time, and why she

didn’t write in her report or even discuss for over a year that

Al-Khammasi had “smirked and laughed” at officers. This robust

42

cross-examination substantially mitigated any unfair prejudice that

could have resulted, assuming without deciding that the court

erred.

b. Al-Khammasi’s Statements to Deputy Hauck

¶ 91 Next we turn to Al-Khammasi’s contention that the trial court

erred by admitting threatening statements he made to Deputy

Hauck several days after the shooting while still hospitalized.

i. Additional Facts

¶ 92 Approximately five days after the shooting, Al-Khammasi

remained in the hospital, guarded by an officer at all times. While

Deputy Hauck was on guard duty, Al-Khammasi was granted

permission to shower. Deputy Hauck walked him down the hall

toward the shower in arm and leg restraints. Al-Khammasi asked

Deputy Hauck if he was going to remove the restraints for the

shower, and Deputy Hauck responded that he couldn’t remove the

restraints. Al-Khammasi then began “cussing” at him, so Deputy

Hauck returned Al-Khammasi to his room. Upon returning to his

room, Al-Khammasi said to Deputy Hauck, “I shoot pussy bitch

cops like you. That’s what I do. And I’ve got a good lawyer, and

when I get out, I’m gonna find you and kill you.”

43

¶ 93 Al-Khammasi objected to the introduction of this statement in

a pretrial motion on the grounds that it “is not relevant under [CRE]

401”; he renewed this objection at trial. In response to his pretrial

motion, the court ruled that the “statement[] may be relevant and

may evidence the defendant’s state of mind. [It] may also be res

gestae.” The court deferred its ruling on the admissibility of the

statement until trial. Before Deputy Hauck testified, the court

again addressed Al-Khammasi’s motion and ruled that the

statement at issue, and other statements, were admissions of a

party opponent and indicative of state of mind. The court also

acknowledged its previous ruling that the statements “fell within

the ambit of res gestae.” The court then permitted the People to

introduce Al-Khammasi’s statement to Deputy Hauck.

ii. Analysis

¶ 94 On appeal, Al-Khammasi again contends that the trial court

erred by admitting his statement to Deputy Hauck without

conducting a Spoto analysis and without giving a CRE 404(b)

44

limiting instruction.

3

Because we conclude that a portion of

Al-Khammasi’s statement is beyond the reach of CRE 404(b), we

divide our analysis into two parts: (1) “I shoot pussy bitch cops like

you. That’s what I do.”; and (2) “And I’ve got a good lawyer, and

when I get out, I’m gonna find you and kill you.”

(1) The First Part of Al-Khammasi’s Statement

¶ 95 The first part of Al-Khammasi’s statement — “I shoot pussy

bitch cops like you. That’s what I do.” — isn’t “other” acts evidence

subject to CRE 404(b). There was no evidence or argument in this

case that Al-Khammasi shot at police on other occasions. The only

occasion on which he is alleged to have done so is the charged

offense. Thus, his statement isn’t evidence of an “other” act, but an

admission of having engaged in the charged conduct. As the trial

court recognized, it’s an admission of a party opponent. See CRE

3

To the extent the court invoked the res gestae doctrine as a basis

for admitting the statement, we now understand that was error.

See Rojas v. People, 2022 CO 8, ¶¶ 4, 41 (abolishing the res gestae

doctrine in criminal cases). But that isn’t a basis for reversal for

two reasons: (1) the trial court’s error in invoking res gestae wasn’t

obvious at the time of trial, as Rojas was decided more than a year

after trial, see People v. Crabtree, 2024 CO 40M, ¶ 6; and (2) as set

forth below, the challenged evidence either isn’t CRE 404(b)

evidence or its admission was harmless.

45

801(d)(2)(A). Accordingly, it wasn’t error for the court to admit this

portion of the statement without first performing a Spoto analysis or

providing a limiting instruction. See Rojas, ¶ 43 (“If evidence

doesn’t implicate the defendant’s character, Rule 404(b) doesn’t

govern its admissibility.”).

(2) The Remainder of Al-Khammasi’s Statement

¶ 96 Al-Khammasi then said, “And I’ve got a good lawyer, and when

I get out, I’m gonna find you and kill you.” In contrast to the first

portion of the statement, the latter portion of the statement may

constitute an “other act” subject to CRE 404(b). And if it is other

acts evidence, the evidence is extrinsic because it was a threat

made toward Deputy Hauck without any direct connection to the

charged offense involving Officer C.D. and because Al-Khammasi’s

threat didn’t “directly prove the offense” and didn’t occur

contemporaneously with the charged offense. See Rojas, ¶¶ 44, 52.

Thus, a Spoto analysis was required for admission. See Rojas, ¶ 52.

But even assuming that the trial court erred by allowing the People

to introduce Al-Khammasi’s threatening statement to Deputy

Hauck, any error was harmless for three reasons.

46

¶ 97 First, the sting of Al-Khammasi’s statement — arguably a

confession to having shot a police officer, as charged — comes from

the first part of the statement, which, as discussed above, was

properly admitted. The latter portion of the statement isn’t

similarly inculpatory.

¶ 98 Second, to the extent that the latter portion of the statement

evinces hostility toward law enforcement, this evidence was

cumulative of other unchallenged evidence the People introduced at

trial. As discussed in Part II.D.2.a.ii above, there was substantial

evidence of Al-Khammasi expressing animus toward law

enforcement officers involved in the case.

¶ 99 Third, the latter portion of the statement provides potentially

mitigating context to the first part of his statement. Without the

latter portion of the statement, the first part — “I shoot pussy bitch

cops like you. That’s what I do.” — appears to be an unadorned

confession to the charged act. But the latter portion of the

statement — the threatening portion of the statement — supports

an alternate inference — namely, that the first two sentences of

Al-Khammasi’s statement weren’t a confession, but simply an

expression of bravado as part of an angry, albeit threatening,

47

outburst. While not flattering, understood in this context it’s

something other than a confession to the charged conduct. In any

event, what weight, if any, to give to the properly admitted portion

of the statement is entirely in the province of the jury; and the later

part of the statement provides potentially important context in

performing that function. Cf. People v. Short, 2018 COA 47, ¶ 46

(discussing that the purpose of the rule of completeness is “to

qualify, explain, or place into context the evidence proffered by the

prosecution”).

¶ 100 In summary, any error in admitting the latter portion of

Al-Khammasi’s statement to Deputy Hauck without performing a

Spoto analysis or giving a limiting instruction was harmless.

c. Al-Khammasi’s Statements During Recorded Jail Visits

¶ 101 Finally, we address the statements Al-Khammasi made and

the conduct he engaged in during two recorded jail visits.

i. Additional Facts

¶ 102 After being released from the hospital, Al-Khammasi was

detained at the county jail. While at the county jail, a friend visited

Al-Khammasi on two occasions. One visit occurred ten days after

48

the shooting, and the second occurred seventeen days after the

shooting. These visits were audio- and video-recorded.

¶ 103 At trial, the People introduced two clips of the recorded visits

without objection from Al-Khammasi. During one of the videos, his

friend asks, “What is wrong with you?” Al-Khammasi responds,

“[I]t’s like two in the morning, police he stopped me in the street, I’m

walking, I don’t know what the fuck [inaudible] motherfucker

police” and “this motherfucker he still survived, the police. He not

die,” followed by laughter. In the second clip Al-Khammasi laughs

when his friend tells him that Officer C.D. is still alive.

ii. Analysis

¶ 104 Because Al-Khammasi didn’t object to the admission of this

evidence, we review his contention that the court erred by failing to

conduct a Spoto analysis or give a limiting instruction for plain

error. Hagos, ¶ 14. Plain error addresses error that is both

“obvious and substantial,” and the standard is “calculated to

temper the contemporaneous-objection requirement in the interests

of permitting an appellate court to correct particularly egregious

errors.” Id. at ¶ 18 (first quoting Miller, 113 P.3d at 750; and then

49

quoting Wilson v. People, 743 P.2d 415, 420 (Colo.1987)). We

discern no error, much less plain error.

¶ 105 Al-Khammasi’s statements and laughter about the shooting

don’t qualify as CRE 404(b) evidence, at least not obviously so.

Al-Khammasi’s statement that “it’s like two in the morning, police

he stopped me in the street, I’m walking, I don’t know” isn’t an

other act and doesn’t suggest that he possesses bad character.

Rather, it’s his own description of the events surrounding the

charged conduct. It’s admissible as an admission of a party

opponent under CRE 801(d)(2)(A) and relevant to his assertion of

self-defense.

¶ 106 Similarly, Al-Khammasi’s statements “what the fuck

[inaudible] motherfucker police” and “this motherfucker he still

survived, the police. He not die,” and any laughter about the

shooting, although demonstrating an animosity toward police

generally and Officer C.D. specifically, don’t obviously qualify as

CRE 404(b) evidence. This evidence too is probative of

Al-Khammasi’s assertion that he acted in self-defense.

¶ 107 Accordingly, the trial court didn’t plainly error by admitting

the recordings from the jail visits.

50

E. Al-Khammasi’s Request to Review Officer C.D.’s and Corporal

Carter’s Internal Records

¶ 108 Before trial, Al-Khammasi subpoenaed the internal police files

and records for Officer C.D. and Corporal Carter. After conducting

an in camera review of the documents provided by the City of

Colorado Springs, the court declined to release any documents,

finding as follows:

After such inspection, the Court finds that

none of the documents are relevant to the case

at bar, and would therefore not be admissible

at trial. The Court also finds that none of the

documents contain exculpatory evidence that

would be probative at trial. Further, the Court

did conduct the balancing test enunciated in

Martinelli v. District Court, [199 Colo. 163,

170,] 612 P.2d 1083, 1088 (1980), and finds

that since the documents are neither relevant,

probative, nor exculpatory, and would not be

admissible at trial, the privacy and

confidentiality of these governmental records

far outweighs defense being able to obtain and

review such documents.

¶ 109 Al-Khammasi requests that we review the subpoenaed

documents to determine whether the trial court erred by declining

to disclose any of them to Al-Khammasi. After conducting our own

in camera review, we conclude that the trial court properly denied

disclosure of any files relating to either officer.

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1. Standard of Review and Legal Principles

¶ 110 “We review a trial court’s resolution of discovery issues for an

abuse of discretion.” People in Interest of A.D.T., 232 P.3d 313, 316

(Colo. App. 2010). In criminal cases, “the prosecution must provide

to the defense any evidence that is favorable to the accused and

material to the guilt or punishment of the accused.” People v. Lowe,

2020 COA 116, ¶ 9. Additionally, “[a] defendant who is charged

with assaulting a police officer is entitled to disclosure of the fact

that complaints charging excessive use of force have been filed

against the officer involved.” People v. Walker, 666 P.2d 113, 121-

22 (Colo. 1983). But police officers also “have a right to privacy in

their personnel files.” Lowe, ¶ 11. When analyzing disclosure, the

trial court must conduct an in camera review of “all complaints of

brutality, excessive use of force, dishonesty or untruthfulness”

based on the standards articulated in Martinelli. Walker, 666 P.2d

at 122. Martinelli addresses both the government’s claim of official

information privilege and an officer’s individual claim of a

constitutional right to privacy or their “right to confidentiality.” 199

Colo. at 169-70, 173, 612 P.2d at 1088, 1091.

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¶ 111 Regarding official information privilege, when determining “the

extent to which the privilege applies to the materials sought to be

discovered,” the trial court must, through its in camera review,

conduct an ad hoc balancing of “(a) the discoverant’s interests in

disclosure of the materials; and (b) the government’s interests in

their confidentiality.” Id. at 170, 612 P.2d at 1088-89. Factors that

the trial court should consider when balancing these interests for

police misconduct claims include

(1) the extent to which disclosure will thwart

governmental processes by discouraging

citizens from giving the government

information; (2) the impact upon persons who

have given information of having their

identities disclosed; (3) the degree to which

governmental self-evaluation and consequent

program improvement will be chilled by

disclosure; (4) whether the information sought

is factual data or evaluative summary; (5)

whether the party seeking the discovery is an

actual or potential defendant in any criminal

proceeding either pending or reasonably likely

to follow from the incident in question; (6)

whether the police investigation has been

completed; (7) whether any intradepartmental

disciplinary proceedings have arisen or may

arise from the investigation; (8) whether the

plaintiff’s suit is nonfrivolous and brought in

good faith; (9) whether the information sought

is available through other discovery or from

other sources; and (10) the importance of the

information sought to the plaintiff’s case.

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Id. at 171, 612 P.2d at 1089 (quoting Frankenhauser v. Rizzo, 59

F.R.D. 339, 344 (E.D. Pa. 1973)).

¶ 112 Regarding a police officer’s right to confidentiality, the court in

Martinelli laid out a different balancing test that the trial court must

perform to determine whether certain information must be

disclosed. Id. at 174, 612 P.2d at 1091. The test requires that the

trial court balance the following inquiries:

(1) does the party seeking to come within the

protection of right to confidentiality have a

legitimate expectation that the materials or

information will not be disclosed?

(2) is disclosure nonetheless required to serve

a compelling state interest?

(3) if so, will the necessary disclosure occur in

that manner which is least intrusive with

respect to the right to confidentiality?

Id.

¶ 113 Before a court engages in a Martinelli analysis, the defendant

must demonstrate the following when a subpoena duces tecum is

challenged:

(1) A reasonable likelihood that the

subpoenaed materials exist, by setting forth a

specific factual basis;

(2) That the materials are evidentiary and

relevant;

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(3) That the materials are not otherwise

procurable reasonably in advance of trial by

the exercise of due diligence;

(4) That the party cannot properly prepare for

trial without such production and inspection

in advance of trial and that the failure to

obtain such inspection may tend unreasonably

to delay the trial; and

(5) That the application is made in good faith

and is not intended as a general fishing

expedition.

People v. Spykstra, 234 P.3d 662, 669 (Colo. 2010) (footnote

omitted).

¶ 114 Additionally, when subpoenas are issued for materials

protected by a “privilege or a right to confidentiality . . . a balancing

of interests” is required and a “defendant must make a greater

showing of need and, in fact, might not gain access to otherwise

material information depending on the nature of the interest

against disclosure.” Id. at 670. If the defendant fails to make the

required Spykstra showing, then the trial court may decline to

conduct an in camera review. People v. Cline, 2022 COA 135, ¶ 26.

¶ 115 If a trial court’s disclosure determinations after an in camera

review are properly appealed, we may conduct our own independent

in camera review on appeal. See A.D.T., 232 P.3d at 319-20.

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2. Additional Facts

¶ 116 Al-Khammasi served a subpoena duces tecum on the Colorado

Springs Police Department requesting production of

[a]ny and all internal police files or records

related to or regarding Officer [C.D.] . . . and

Corporal Ronald Carter . . . including but not

limited to, all use of force reports, all

disciplinary records or complaints, and any

accompanying interviews, findings,

investigations, photos, and documents relating

thereto pursuant to C.R.S. 24-72-303.

¶ 117 Al-Khammasi also filed a brief in support of this subpoena and

requested that the trial court conduct an in camera review of Officer

C.D.’s and Corporal Carter’s personnel records to determine

whether any documents should be disclosed to Al-Khammasi. In

this brief, Al-Khammasi primarily recited the law surrounding

disclosure and gave generic reasons for why the documents should

be disclosed. In response, the City of Colorado Springs and the

People filed a joint motion to quash the subpoena, arguing that

Al-Khammasi’s request was a “fishing expedition” and that he failed

to make the required Spykstra showing. Despite the motion to

quash, the People and the city attorney agreed to tender the files to

the trial court for an in camera review.

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¶ 118 After conducting an in camera review of the tendered files, the

trial court issued an order declining to release any of the

subpoenaed information. The trial court agreed that Al-Khammasi

had failed to meet the Spykstra requirements but stated that out of

“an abundance of caution,” it conducted a full in camera review and

found that none of the documents in the officers’ files were relevant,

probative, or exculpatory, and therefore, “the privacy and

confidentiality of these governmental records far outweighs defense

being able to obtain and review such documents.”

3. The Trial Court Didn’t Err

¶ 119 We have reviewed the subpoenaed documents, which were

provided to us under seal as part of the record on appeal. We agree

with the trial court that Al-Khammasi failed to make an initial

Spykstra showing because he failed to (1) provide proof that there is

a reasonable likelihood the information exists; (2) show relevancy

and evidentiary value of the requested documents; (3) show that he

couldn’t prepare for trial without the subpoenaed documents; and

(4) demonstrate that the subpoena wasn’t a fishing expedition.

Even if he had made the initial Spykstra showing, our independent

review of Officer C.D.’s and Corporal Carter’s records confirms that

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the trial court didn’t err by declining to disclose any records to

Al-Khammasi. Nothing in either Officer C.D.’s or Corporal Carter’s

files is relevant or would provide evidence that is constitutionally

required. The government and the officers’ interest in

confidentiality therefore outweighs Al-Khammasi’s interest in

disclosure.

¶ 120 Accordingly, the trial court didn’t err by declining to disclose

any documents from Officer C.D.’s or Corporal Carter’s files.

III. Disposition

¶ 121 We affirm the judgment.

JUDGE YUN and JUDGE LUM concur.