Peo v. Shukurov

22CA0464 Peo v Shukurov 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0464

Arapahoe County District Court No. 19CR3687

Honorable Joseph Whitfield, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Furkatjon A. Shukurov,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE GOMEZ

Tow and Kuhn, JJ., concur

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

Announced September 5, 2024

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Furkatjon A. Shukurov, appeals the judgment of

conviction entered on jury verdicts finding him guilty of second

degree assault (strangulation) and third degree assault. He

contends that the trial court reversibly erred by (1) denying his

motion to suppress evidence obtained from officers’ entry into and

search of his home; (2) denying his motion to suppress statements

he made to officers at his home; (3) denying his for cause challenge

to a juror; and (4) allowing two witnesses to opine on the

truthfulness of the victim’s testimony. We disagree with those

contentions and therefore affirm the judgment.

I. Background

¶ 2 One night, the victim — Shukurov’s wife — called 911 and

reported that Shukurov had “beat” her with his hands about two

hours before and was still in the home with her and their children.

She said that she wasn’t hurt and didn’t want an ambulance sent

because she didn’t want to wake the children.

¶ 3 Three police officers arrived at Shukurov’s home, knocked on

the front door, and announced, “Sheriff’s office. Step outside.”

When Shukurov opened the door, one of the officers ordered him to

stand against the wall and performed a pat down. Nothing was

2

discovered in the pat down. Another officer asked Shukurov —

whose first language is Russian — if he “underst[oo]d English pretty

well.” He nodded and said, “Yeah, yeah.” The officer then asked,

“Is it okay if we all go inside and talk?” Shukurov nodded again;

motioned to the door; and said, “Yeah, yeah.” The officers followed

him inside. One officer went through the home while two others

stayed with Shukurov. At some point, a fourth officer also arrived

and briefly went through the home.

¶ 4 With the aid of Russian translators, the officers interviewed

Shukurov and the victim in different rooms for about fifteen to

twenty minutes each.

¶ 5 The victim told officers that Shukurov had struck her in the

leg and arm, choked her, and threatened to kill her. Officers

documented several injuries, including bruises on her arm and leg

(one of which appeared in the shape of a knuckle), a cut on her

neck, and pieces of her hair that she said Shukurov had pulled out.

¶ 6 Shukurov denied the assault. He said he and the victim had

had an argument, but he hadn’t struck her. Officers observed

scratches on Shukurov’s face and neck, which he said he’d gotten

3

when he climbed a ladder at work and scratched himself on some

branches.

¶ 7 After interviewing both parties, the officers instructed

Shukurov to stand up and face the wall, placed him in handcuffs,

and took him out to a patrol car. As they were doing so, Shukurov

cried and said “last time” a few times. He also said something to

the effect of “I won’t hit my wife anymore.”

¶ 8 Before trial, Shukurov filed three motions to suppress, arguing

that (1) the officers’ entry into his home was illegal and, therefore,

all evidence, observations, and statements obtained from that entry

were inadmissible; (2) the statements he made to officers at his

home should be suppressed because they were obtained in violation

of Miranda v. Arizona, 384 U.S. 436 (1966); and (3) the statements

he made to officers should be suppressed because they were

involuntary. After a hearing, the trial court denied all three

motions.

¶ 9 At trial, the victim recanted her previous allegations that

Shukurov had assaulted her. Instead, she testified that her injuries

occurred when she “fell down the stairs” and that she’d called 911

in a “nervous breakdown” due to medications she’d taken that day.

4

¶ 10 Following a four-day trial, the jury found Shukurov guilty as

charged. He was sentenced to a ninety-day term in jail followed by

three years of probation.

II. Search & Seizure

¶ 11 Shukurov challenges the trial court’s denial of his first motion

to suppress, which related to the officers’ entry into and search of

his home. Specifically, Shukurov contends that the court erred by

concluding that (1) the pat down was legal; (2) officers had valid

consent to enter his home; and (3) the search was appropriate in

scope. We are not persuaded.

¶ 12 Our review of a suppression order presents a mixed question

of fact and law. People v. Berdahl, 2019 CO 29, ¶ 18. We defer to

the trial court’s factual findings, such as findings of historical facts

underlying the issue of consent to search, if they are supported by

the record. Id.; see also People v. Chavez-Barragan, 2016 CO 66,

¶ 34. But we assess de novo the legal effect of those facts, such as

whether a search was constitutional. Berdahl, ¶ 18; see also People

v. McKnight, 2019 CO 36, ¶ 21; Chavez-Barragan, ¶ 34.

5

A. The Pat Down

¶ 13 Shukurov initially argues that officers illegally patted him

down when they arrived at his home and that this illegal pat down

influenced his response when, soon thereafter, they asked to go

inside. We disagree that the pat down was illegal.

¶ 14 Patting down a suspect for weapons is a type of investigatory

stop — an intermediate form of governmental intrusion, falling in

between a consensual encounter and an arrest. See People v. King,

16 P.3d 807, 814 (Colo. 2001); People v. Barnard, 12 P.3d 290, 293

(Colo. App. 2000).

¶ 15 To subject a person to an investigatory stop, three conditions

must be met: (1) there must be a specific and articulable basis in

fact for suspecting criminal activity; (2) the purpose of the stop

must be reasonable; and (3) the scope and character of the stop

must be reasonably related to its purpose. Id. To pat down that

person during the stop, an officer must also have a reasonable

basis to suspect that the person might be armed and dangerous.

People v. Martinez, 801 P.2d 542, 544 (Colo. 1990).

6

¶ 16 Shukurov challenges only the final requirement: the existence

of a reasonable basis to suspect he might’ve been armed and

dangerous. We conclude that this requirement was satisfied.

¶ 17 As the trial court explained, officers learned from the 911

dispatcher that Shukurov had allegedly “beaten his wife” and

“threat[ened] . . . to kill his wife” two hours earlier. The officer who

later conducted the pat down also recalled hearing over the radio

from dispatch about a previous law enforcement contact where

Shukurov was armed with a handgun and was uncooperative.

¶ 18 This information supports a reasonable belief that Shukurov

may have been armed and dangerous. See People v. Mascarenas,

972 P.2d 717, 721 (Colo. App. 1998) (officers had a sufficient basis

to pat down a domestic violence suspect, in part because they

“knew that domestic violence situations were particularly

dangerous”); People v. Allen, 2019 CO 88, ¶ 26 (“[I]nformation

regarding the possibility that [the defendant] was carrying a

handgun” provided support for a pat down.); see generally People v.

Chavez, 240 P.3d 448, 451 (Colo. App. 2010) (“When officers

respond to a domestic abuse call, they understand that ‘violence

may be lurking and explode with little warning.” (quoting United

7

States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005))) (alteration

omitted). Thus, the officers “were permitted to conduct a minimally

intrusive frisk or pat-down search of [Shukurov] for safety

purposes.” People v. Johnson, 2024 CO 47, ¶ 41.

¶ 19 We reject Shukurov’s arguments to the contrary. He notes

that one of the other responding officers didn’t recall any

information from dispatch about a prior encounter involving a gun.

But that’s irrelevant, as one officer testified to hearing the

information, and the trial court accepted that testimony as true. He

also suggests that it should’ve been obvious to the officers once they

interacted with him that he didn’t have a weapon, as he was

compliant with their requests, didn’t make any furtive gestures, and

wore tight-fitting clothes that revealed various places where a

weapon could’ve been lodged. But given the other circumstances

suggesting the possibility of a weapon, as well as the other places

where one could’ve been hidden, it was still reasonable to fear that

he might’ve been armed and dangerous.

8

B. Consent to Enter the Home

¶ 20 Shukurov also argues that he didn’t voluntarily consent to the

officers’ entry into his home, and thus the intrusion into his home

was illegal. We disagree.

¶ 21 Police may enter and search a person’s home without a

warrant if the person freely and voluntarily consented to it. People

v. Stone, 2021 COA 104, ¶¶ 35-36. To assess whether a person’s

consent was voluntary, we apply an objective test based on the

totality of the circumstances. Berdahl, ¶ 23. Relevant factors

include the defendant’s age, education, and intelligence; the

duration, location, and circumstances of the search; the defendant’s

state of mind; and any other factors that could’ve affected the

defendant’s free and unconstrained choice in consenting. Id.

¶ 22 Like the trial court, we conclude that Shukurov voluntarily

consented to the officers entering his home. As the court found, the

officers “casual[ly] knock[ed]” on Shukurov’s door when they

arrived, and “[n]o weapons or tasers were drawn.” See Chavez-

Barragan, ¶ 48 (consent to a search was voluntary where officers

were “polite” and didn’t act “threateningly”). When asked, after the

pat down, if they could “all go inside and talk,” Shukurov nodded;

9

motioned to the door; and said, “Yeah, yeah.” See People v. Bostic,

148 P.3d 250, 254 (Colo. App. 2006) (consent to entry into a motel

room was voluntary where officers “asked . . . whether they could

speak with [the defendant] inside,” and “she stepped back, held the

door open, . . . allowed the officers into the room . . . [and]

responded ‘sure’”) (alteration omitted).

¶ 23 Although Shukurov’s first language is Russian, we agree with

the trial court that any language barrier didn’t invalidate his

consent. The record supports the court’s finding that, in their

initial contact without a Russian interpreter, “[Shukurov] appeared

to understand them.” See Chavez-Barragan, ¶ 55 (consent to a

search was voluntary where the defendant “spoke English well

enough to reliably communicate with [the officer]”). Indeed, when

asked if he understood English “pretty well,” Shukurov nodded and

responded, “Yeah, yeah.” And as the court noted, Shukurov

“state[d] in English that he d[id] not mind if the officers c[a]me

inside.”

¶ 24 Furthermore, nothing in the record suggests that officers used

any language barrier to coerce Shukurov into consenting. See

People v. Munoz-Gutierrez, 2015 CO 9, ¶ 34 (consent to a search

10

was voluntary where “[t]here [wa]s no record that [officers] used the

language barrier to coerce or attempt to trick [the defendant] into

providing consent”). In fact, as the trial court observed, officers

contacted a Russian translator when speaking to Shukurov in

greater detail inside. But even with the assistance of a translator,

“[Shukurov] never indicated not wanting to speak to the deputies,

or that they were not permitted to be in his residence.”

¶ 25 Therefore, the totality of circumstances indicates that

Shukurov voluntarily consented to officers entering his home.

C. The Scope of the Search

¶ 26 As his last argument concerning officers’ entry into his home,

Shukurov argues that even assuming that he consented to the

officers’ entry into his home, the officers unlawfully searched his

home beyond the scope of his limited consent. More specifically, he

argues that, at most, he consented to going inside to talk with the

three officers who initially came to his door — not to the officers’

search of his entire home or to the entry of a fourth officer into his

home. Again, we disagree. Even if Shukurov’s consent was so

limited, once the officers were inside, exigent circumstances

11

justified their broader search of the home to ensure the safety of the

victim and the children.

¶ 27 Under the exigent circumstances exception to the warrant

requirement, “[a] prompt and limited warrantless search of a scene

at which violence has occurred may . . . be necessary to determine

if there are any injured parties.” People v. Thompson, 770 P.2d

1282, 1285 (Colo. 1989). As relevant here, this exception applies

where there is probable cause of criminal activity and “a colorable

claim of emergency threatening the life or safety of another.” People

v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006). The scope of such a

search is governed by the exigent circumstances justifying it. Id.;

see also Thompson, 770 P.2d at 1285.

¶ 28 Domestic violence often gives rise to exigent circumstances

because “violence may be lurking and explode with little warning,”

and “‘[t]he signs of danger may be masked’ by a battered victim’s

fear or dependence.” Chavez, 240 P.3d at 451 (first quoting

Martinez, 406 F.3d at 1164; and then quoting Fletcher v. Town of

Clinton, 196 F.3d 41, 50 (1st Cir. 1999)).

¶ 29 For example, in Chavez, a division of this court found exigent

circumstances based on a 911 call reporting a physical altercation

12

between the caller’s mother and the defendant. Id. at 452. “True

911 calls,” the division explained, “by their very nature, involve

emergencies.” Id. The exigency apparent from the daughter’s 911

call was heightened by officers’ observations when they arrived on

the scene — a dark home and no response to their repeated knocks

on the front door. Id. Thus, the division found the warrantless

entry and search of the home was justified. Id.

¶ 30 Here, too, the victim’s 911 call, combined with officers’

observations upon arrival, established both probable cause of a

crime and a colorable claim of an emergency threatening the

victim’s (and potentially the children’s) safety. From the 911 call,

the officers learned that Shukurov allegedly beat and threatened to

kill his wife. The victim had told the dispatcher that Shukurov was

still there, as were their children; that he’d beaten her before; and

that she “d[id]n’t know how to protect [her]self.” As in Chavez, the

nature of the 911 call, in and of itself, may have created exigent

circumstances. But even if it didn’t, the exigency was heightened

by officers’ observations as they entered the home with Shukurov’s

consent and observed scratches on his face and neck. Thus, a

limited warrantless search was justified.

13

¶ 31 Shukurov challenges the trial court’s finding that the victim

was in the front room as officers entered the home. Although one of

the responding officers testified at the suppression hearing that the

victim “was walking into the front room” as they entered the home,

the body camera footage indicates that, in fact, she was in the back

part of the home and not immediately visible when the officers went

inside. But even assuming she was not immediately visible, the

officers were justified in trying to locate her (and the children), given

Shukurov’s visible injuries and her statement that he’d beaten and

threatened to kill her.

¶ 32 Shukurov also argues, citing People v. Allison, 86 P.3d 421,

427 (Colo. 2004), that there was no exigency because the victim had

indicated on the 911 call that the incident had occurred two hours

before and that she wasn’t injured. But in Allison, the warrantless

search following an alleged domestic violence incident occurred only

after the defendant and victim had both come out of the home,

there was no indication that anyone else was inside, and “no

immediate crisis remained.” Id. at 427. Here, by contrast, officers

had reason to know that the victim had been beaten and threatened

with her life and that she and the couple’s children were still inside

14

the home. Officers also didn’t have to credit the victim’s statements

that the incident was over and that she wasn’t injured, particularly

given her indication that Shukurov was still in the home with her.

See Thompson, 770 P.2d at 1286 (officers could’ve believed that the

victim’s statements that the defendant was “gone” and “[e]verything[

was] okay” “were made under duress because the [defendant] was

still present”); see also Chavez, 240 P.3d at 451.

¶ 33 Finally, Shukurov doesn’t contest the fact that once officers

found the visibly injured victim, they were justified in staying with

her to interview her, assess her injuries, and protect her from any

further violence. Accordingly, the scope of the search was properly

limited by the exigent circumstances justifying it.

III. Miranda & Voluntariness

¶ 34 Shukurov next challenges the trial court’s denial of his other

two motions to suppress, which related to his statements to officers

at his home. Specifically, he contends that (1) the officers’

questioning constituted custodial interrogation, violating his

Miranda rights; and (2) his post-arrest statements were involuntary.

We disagree with both contentions.

15

A. Custodial Interrogation

¶ 35 Like the trial court, we conclude that the interview in

Shukurov’s home didn’t constitute custodial interrogation because

he wasn’t in custody. Accordingly, Shukurov’s statements during

the interview weren’t obtained in violation of his Miranda rights.

¶ 36 Whether a person was in custody for Miranda purposes is a

mixed question of law and fact. People v. Bohler, 2024 CO 18, ¶ 17.

We rely on undisputed facts in the record and defer to the trial

court’s factual findings when they’re supported by the record,

although we may independently review recordings, including police

bodycam footage. Id. But we review de novo the legal question

whether those facts, taken together, establish that the person was

in custody. People v. Pleshakov, 2013 CO 18, ¶ 16.

¶ 37 To uphold the Fifth Amendment privilege against self-

incrimination, officers must provide certain warnings before a

custodial interrogation. Bohler, ¶ 18. “Custody for Miranda

purposes depends on whether a reasonable person in the

defendant’s position would believe they were in police custody ‘to a

degree associated with a formal arrest.’” Id. at ¶ 19 (quoting People

v. Cline, 2019 CO 33, ¶ 2). To determine if a defendant was in

16

custody at the time of a police encounter, we consider (1) the time,

place, and purpose of the encounter; (2) the persons present during

the encounter; (3) the words an officer spoke to the defendant;

(4) the officer’s tone of voice and demeanor; (5) the length and mood

of the encounter; (6) whether officers placed any limitation of

movement or other form of restraint on the defendant; (7) the

officer’s response to any questions the defendant asked; (8) whether

directions were given to the defendant; and (9) the defendant’s

verbal or nonverbal response to such directions. Id.

¶ 38 Based on the trial court’s findings on these factors, which are

supported by the record, as well as our own independent review of

the bodycam footage, we conclude that Shukurov wasn’t in custody

at the time he spoke with officers in his home.

¶ 39 As the trial court found, the time, place and purpose of the

encounter weighs against a finding of custody. Officers arrived at

Shukurov’s and the victim’s shared residence — a neutral, familiar

location — in response to the victim’s report of domestic violence.

See People v. Davis, 2019 CO 84, ¶ 27 (“[A] neutral or familiar

location such as the suspect’s home can weigh against a finding of

17

custody.”). And, as the court found, “[t]he purpose was to respond

to the victim’s call for help to 911.”

¶ 40 The number of persons present during the encounter also

weighs against a finding of custody. Although four officers entered

Shukurov’s home, only one officer interviewed him; the others were

talking to the victim or engaging in other tasks and, at most, briefly

spoke to him. See Pleshakov, ¶ 30 (the defendant wasn’t in custody

because, “[a]lthough there were four officers present at the scene,

[one officer and the defendant] conversed alone while the remaining

officers engaged in other tasks”).

¶ 41 The words used by the officer who interviewed Shukurov

further indicate that Shukurov wasn’t in custody. As the trial court

found, the officer used a “simple question and answer technique,

nothing untoward or out of the ordinary,” and his questions were

“consistent with the investigation of an alleged domestic assault

that occurred two hours prior.”

¶ 42 Likewise, the tone of voice and demeanor of the officer who

interviewed Shukurov indicates that Shukurov wasn’t in custody.

The court found, and the bodycam video confirms, that the officer’s

tone was “conversational” and his demeanor was “calm,” “other

18

than elevating his voice to control the situation when [Shukurov]

yelled at the victim during the contact.” See Davis, ¶ 34 (the

defendant wasn’t in custody where “the mood of [the] interrogation

was calm and conversational”).

¶ 43 The same is true of the length and mood of the encounter. As

the court found, “[t]he questioning lasted 15-20 minutes,” and none

of the officers made any “threats” to Shukurov. In all, the officers

were in Shukurov’s home less than forty-five minutes before they

arrested him. See People v. Allman, 2012 COA 212, ¶ 49 (the

defendant wasn’t in custody where questioning “took no more than

fifteen to twenty minutes” and officers didn’t “threaten or accuse”

the defendant).

¶ 44 The factor of restraints or limitations on movement is relatively

neutral. While the officers locked the front door and one of them

told another not to let Shukurov go anywhere, it’s unclear whether

Shukurov was aware of those actions or statements. Cf. People v.

Matheny, 46 P.3d 453, 468 (Colo. 2002) (“[A]n officer’s unarticulated

plan has no bearing on the question of whether a suspect was ‘in

custody’ at a particular time.” (quoting Stansbury v. California, 511

U.S. 318, 323 (1994))). Certainly, as the trial court found,

19

Shukurov “was not restrained and not in handcuffs.” See Allman,

¶ 49 (the defendant wasn’t in custody where he “was not restrained

or limited in movement”). And while he was told to sit on the couch

in his front room, to later move to another part of the couch, and to

stay still, “direction to sit down [i]s a minor restraint at most.”

Bohler, ¶ 30.

¶ 45 Officers responded positively to Shukurov’s questions and

requests, which weighs against a finding of custody. When

Shukurov requested water, an officer retrieved some for him. And

when Shukurov asked if he was being arrested, an officer told him

that he wasn’t being arrested at that time. Cf. Pleshakov, ¶ 31 (“A

reasonable person would not perceive [an officer’s statement that he

believed he had enough information to obtain a warrant] to be the

functional equivalent of an arrest.”); People v. Figueroa-Ortega, 2012

CO 51, ¶ 10 (“[T]hreatening, no matter how confidently, to charge [a

defendant] with a crime at some point in the future does not, by

itself, constitute [an arrest] . . . .”). The officer also explained that

Shukurov has “a lot of rights,” even though he’s a “suspect of

something,” and that the officers “need to make sure everybody’s

rights are being respected here.”

20

¶ 46 Finally, officers’ directions and Shukurov’s response to those

directions weigh slightly against a finding of custody. Although the

officers requested in a nonthreatening way that Shukurov sit on the

couch in the front room, move his position to another side of the

couch, stay put, and not talk to the victim, the trial court found

that these were merely efforts to “separate the parties,” “divide [the

officers’ attention between them,” and prevent the “victim [from]

being intimidated.” See Bohler, ¶ 33 (the defendant wasn’t in

custody where “requests did not feature force, threats of negative

consequences for not complying, or an aggressive tone” and “were

related to immediate safety, which does not indicate custody”).

Shukurov for the most part complied, though he did try several

times to speak to the victim, sometimes yelling toward her in the

next room. See People v. Garcia, 2017 CO 106, ¶ 36 (the fact that

the defendant ignored an officer’s request to stop using her phone

cut against a finding of custody).

¶ 47 These facts are far different from those in People v. Minjarez,

81 P.3d 348 (Colo. 2003), on which Shukurov relies. In that case,

the supreme court concluded the defendant was in custody when

officers had him brought into a private room in the hospital where

21

his child was being treated; interviewed him for forty-five minutes,

and for much of that time created “a highly confrontational and

accusatory atmosphere that was clearly aimed at obtaining a

confession”; asked questions “designed essentially to force

agreement from the defendant”; and “confronted the defendant with

the evidence against him and with [the questioner’s] own belief in

[his] guilt.” Id. at 351, 356. Here, by contrast, Shukurov was

interviewed in his own home in a far more conversational and less

confrontational manner.

¶ 48 On balance, the totality of the circumstances in this case

indicates that Shukurov was not in custody for purposes of Miranda

when he was interviewed in his home.

B. Voluntariness

¶ 49 We also conclude that the only statements Shukurov

challenges on the basis of voluntariness — “last time” and “I won’t

hit my wife anymore” — were, in fact, voluntary. Although

Shukurov was in custody by the time he made these statements,

the statements were spontaneous and not the result of any

interrogation. Thus, the introduction of the statements at trial

didn’t violate Shukurov’s Miranda rights.

22

¶ 50 Whether a suspect’s statement was voluntary is a mixed

question of law and fact. People v. Sanders, 2023 CO 62, ¶ 10. We

defer to the trial court’s underlying factual findings if they are

supported by the record, but we review de novo the ultimate legal

question of whether a statement was voluntary. Effland v. People,

240 P.3d 868, 878 (Colo. 2010).

¶ 51 To be voluntary, a statement must be the product of an

essentially free and unconstrained choice and cannot have been the

product of coercive government conduct that overbore the suspect’s

will. Sanders, ¶ 14. Voluntariness is determined by considering

the totality of the circumstances under which a statement was

made, including such factors as (1) whether the defendant was in

custody or free to leave and was aware of that fact; (2) whether the

defendant was advised of, understood, and waived their Miranda

rights before any interrogation; (3) whether the defendant had the

opportunity to confer with counsel or anyone else before the

interrogation; (4) whether the challenged statement was made

during the course of an interrogation or was volunteered;

(5) whether any overt or implied threats or promises were directed

to the defendant; (6) the method and style of questioning and the

23

length and place of the interrogation; and (7) the defendant’s mental

and physical condition, educational background, employment

status, and prior experience with law enforcement and the criminal

justice system. People v. Gennings, 808 P.2d 839, 844 (Colo. 1991).

¶ 52 Based on the trial court’s findings on these factors, which are

supported by the record, we conclude that the challenged

statements were voluntary.

¶ 53 The facts that Shukurov was in custody, hadn’t received

Miranda warnings, didn’t have the chance to confer with anyone

before he made the statements, and had expressed a fear of law

enforcement weigh against a finding of voluntariness.

¶ 54 However, the other factors indicate that Shukurov’s post-

arrest statements were voluntary. Most critically, as the trial court

found, with record support, although Shukurov continued to talk

after he’d been handcuffed and arrested, his post-arrest statements

were “spontaneous and not in response to questions from law

enforcement. No statements were elicited from him once he was in

custody.” The body camera recording shows Shukurov repeatedly

saying “last time,” though officers weren’t questioning him but were

merely seeking to locate his shoes at the time. And the officer who

24

heard Shukurov say, “I won’t hit my wife anymore,” testified at the

suppression hearing that Shukurov said it “three or four times” and

that it was not “in response to any question or any statement” the

officer had made. See People v. Wood, 135 P.3d 744, 752 (Colo.

2006) (“A defendant’s spontaneous utterances will not be excluded

where there is no interrogation.”), aff’d, 255 P.3d 1136.

¶ 55 Additionally, nothing leading up to Shukurov being placed in

custody suggests that his post-arrest statements were coerced. As

the trial court found, the officers made “no threats or promises”; the

“method and style were [a] simple question and answer technique”;

“[t]here [was] no showing that the deputies acted coercively”; and

the interview lasted for fifteen to twenty minutes and occurred in

Shukurov’s home — all of which weigh in favor of voluntariness.

The court acknowledged that “[Shukurov] appeared sad and upset

at times” but found that, “given the circumstances,” his reaction

was “not unusual” and didn’t lead “to the contact becoming

coercive, overbearing, or unconstitutional.” See People v. Pearson,

725 P.2d 782, 784 (Colo. 1986) (a defendant’s emotional distress

isn’t in and of itself a sufficient basis to conclude that their

statement is involuntary).

25

¶ 56 In light of these factors, this case is nothing like People v.

Raffaelli, 647 P.2d 230 (Colo. 1982), which Shukurov cites. There,

following the defendant’s arrest and Miranda advisement, an officer

continued talking with the defendant, ultimately “bec[o]m[ing] more

accusatory,” “question[ing] [the defendant] closely about the details

of [the defendant’s] story,” saying he would “tear [the defendant’s]

story up in court,” and insisting that he “wanted the truth about

the situation and not a lie.” Id. at 231-32. In this case, the

challenged statements weren’t made in response to any continued

questioning by the officers. Nor was the questioning in this case

ever as accusatory as that described in Raffaelli.

¶ 57 Therefore, we conclude that Shukurov’s post-arrest statements

were voluntary and were properly admitted at trial.

IV. For Cause Juror Challenge

¶ 58 Shukurov also contends that the trial court erred by denying

his for cause challenge to a juror who sat on the jury. We disagree.

¶ 59 During voir dire, defense counsel asked the venire,

If a woman comes to court and accuses a man

of being physically violent with her on one

incident, . . . and during the course of that you

hear evidence that the same man has been

physically violent with her in the past, can I

26

get a show of hands of who here thinks that

means he’s probably a little more likely to have

done it this time.

¶ 60 Several potential jurors raised their hands, including Juror F.

Defense counsel asked Juror F why he raised his hand, and the

following exchange ensued:

[Juror F]: Well, where there’s smoke there’s

fire. I’m an aircraft mechanic. When an

aircraft has a history and it gets the same

problem over and over again, you have to

figure it out, and when things keep happening

again, there is a problem. It’s not just a one-

time anomaly.

. . . .

[Defense counsel]: [F]air to say there is sort of

a mechanical way to look at this issue?

[Juror F]: Yeah. I mean, it depends upon the

evidence presented. That is what it comes

down to, that is the way I have to figure out

stuff in my life, in my job.

[Defense counsel]: So if you heard a rule from

a judge in a criminal case in court that said

you’re not allowed to use the fact that someone

has done something before in any way to

decide whether they have done it this time,

does that make a lot of sense to you?

[Juror F]: It does, but it would depend upon

had the person been convicted of that before,

too.

27

[Defense counsel]: Okay. Let me ask you this.

If the judge told you you could use that

evidence for a specific purpose but not for

deciding whether the person did it this time,

does that make sense?

[Juror F]: It makes sense, but, I mean, to be

completely honest with you, it’s going to be in

the cobwebs in the back of your mind. I think

that’s just human nature.

. . . .

[Defense counsel]: I think a lot of people feel

that way, and I fully recognize that sometimes

what we lawyers ask you to do in court is

inconsistent with what is normal to being a

human being, if that’s fair.

[Juror F]: I get it. I get it. . . . I mean, every

person in this potential jury pool, I mean, they

would just do the best they could to comply

with the judge’s instructions. I guess that’s

the way it would be.

¶ 61 Defense counsel challenged Juror F for cause, arguing that

“[i]t doesn’t sound like he can unequivocally follow the [c]ourt’s

[CRE] 404(b) instruction.” The court denied the challenge.

¶ 62 We review a trial court’s ruling on a for cause juror challenge

for an abuse of discretion. Vigil v. People, 2019 CO 105, ¶ 14. A

court abuses its discretion if its ruling is manifestly arbitrary,

unreasonable, or unfair or is contrary to law. See id.

28

¶ 63 Defendants have a constitutional right to a fair and impartial

jury, which may be violated by seating a biased juror. People v.

Abu-Nantambu-El, 2019 CO 106, ¶ 14. In furtherance of that right,

section 16-10-103(1)(j), C.R.S. 2024, requires a court to grant a

challenge for cause to a prospective juror who “evinc[es] enmity or

bias toward the defendant or the state” unless the court is

“satisfied” that the prospective juror “will render an impartial

verdict according to the law and the evidence submitted to the jury

at the trial.” See also Abu-Nantambu-El, ¶ 16. Moreover, a

prospective juror should be excused if it appears doubtful that they

will be governed by the court’s instructions. Morgan v. People, 624

P.2d 1331, 1332 (Colo. 1981).

¶ 64 We conclude that the trial court didn’t abuse its discretion by

denying the challenge to Juror F. The court acknowledged Juror

F’s hesitation about prior act evidence but found, based on the

entirety of the juror’s statements, that he could render an impartial

verdict according to the law:

[T]he [c]ourt did hear the statements made in

regards to where there is smoke there is fire,

but nonetheless the [c]ourt also heard more

than that. [Juror F] said it depends on the

evidence presented, . . . [which] is exactly what

29

the [c]ourt expects. We expect the parties to

consider the evidence and that it would

depend on that. He is right, something [a]s

vague as cobwebs in the back of my mind does

not give the [c]ourt pause. I am mindful [of]

what he said, but I am mindful of the totality

of what he said, not just one statement or

another, and his hypothetical, if you will, was

somewhat rebutted when he explained that he

would rely on the evidence. So it goes past

404(b). It’s actually what evidence is

presented and he said that. So the [c]ourt has

confidence that not only would he do his best

to [do] that but that he could do that, everyone

could. And he said that — he pointed to

himself, too, and would do the best job they

could. No one can ask any more of a juror in

that scenario.

¶ 65 Thus, the court thoroughly explained why it was satisfied that

Juror F could render an impartial verdict.

¶ 66 And the record supports the court’s discretionary decision.

Although Juror F initially suggested that he thought evidence of

prior domestic violence incidents would make it more likely that a

defendant was guilty of domestic violence, he later indicated that it

“depends upon the evidence presented” and, more importantly, that

“every person in th[e] potential jury pool” — including himself —

“would just do the best they could to comply with the judge’s

instructions.” See People v. Wilson, 2014 COA 114, ¶ 11 (“A trial

30

court abuses its discretion in this [for cause juror challenge] context

only if there is no evidence in the record to support its decision.”);

see also People v. Marciano, 2014 COA 92M-2, ¶ 8 (“If the potential

juror indicates that she can set aside [her preconceived] beliefs and

make a decision based on the evidence and the court’s instructions

on the law, she may still sit on the jury.”); People v. Oliver, 2020

COA 97, ¶ 18 (“Where a potential juror states that he will try to

follow the court’s instructions despite any preconceived notions,

that juror may nonetheless sit on the jury.”).

V. Witness Testimony

¶ 67 Lastly, Shukurov contends that the trial court erred by

allowing one of the responding officers and a paramedic to comment

on the victim’s truthfulness. We discern no reversible error.

¶ 68 On redirect examination of the officer, the prosecutor asked,

“In your thirteen years in law enforcement, were the marks on [the

victim’s] thigh consistent with being punched?” Defense counsel

objected, but the court overruled the objection. The officer

responded, “Yes, absolutely.”

¶ 69 Then, on redirect examination of the paramedic, the

prosecutor asked, “Did anything about the visible injuries that you

31

observed seem inconsistent with how [the victim] told you she

obtained them?” Again, defense counsel objected, but the court

overruled the objection. The paramedic responded, “No.”

¶ 70 According to Shukurov, by testifying that the victim’s injuries

were consistent with her original allegations of domestic violence,

these witnesses improperly bolstered her credibility.

¶ 71 One witness may not give opinion testimony that another

witness was telling the truth on a specific occasion. People v.

Wittrein, 221 P.3d 1076, 1081 (Colo. 2009); see also CRE 608. This

prohibition includes indirect as well as direct implications of a

witness’s truthfulness. Venalonzo v. People, 2017 CO 9, ¶ 32.

¶ 72 Shukurov acknowledges that in People v. West, a division of

this court concluded that testifying that a victim’s testimony is

“consistent with” certain evidence isn’t improper bolstering. 2019

COA 131, ¶¶ 37, 43. However, he urges us to depart from West

because another division of this court more recently concluded that

its “reasoning . . . is at odds with Colorado Supreme Court

precedent.” People v. Daley, 2021 COA 85, ¶ 90 (declining to apply

West); see also People v. Bobian, 2019 COA 183, ¶¶ 43-49 (Berger,

J., specially concurring) (expressing disagreement with West).

32

¶ 73 We needn’t weigh in on the propriety of West, though, because

we conclude that any error in allowing the witnesses to testify that

the victim’s injuries were consistent with her statements at the

scene was harmless. For the same reason, we also don’t weigh in

on the People’s argument that the defense opened the door to the

challenged testimony through its cross-examinations.

¶ 74 We apply the harmless error standard to determine if any

preserved nonconstitutional errors in the admission of evidence

warrant reversal. Venalonzo, ¶ 48. Under this standard, we reverse

only if the error substantially influenced the verdict or affected the

fairness of the trial proceedings. Id.

¶ 75 We conclude that any error in the admission of the challenged

statements was harmless for six reasons.

¶ 76 First, the challenged statements were brief, particularly

considering the total length of each witness’s testimony. The

transcript of the officer’s testimony spans about eighty pages over

the course of two days. The challenged portion consists of a single

question and answer. Similarly, the paramedic’s testimony spans

over thirty pages, but the challenged portion consists of a single

question and answer. And the challenged statements weren’t

33

directly referenced in the closing arguments. See People v. Gaffney,

769 P.2d 1081, 1088 (Colo. 1989) (erroneous admission of

truthfulness testimony was harmless, in part because it consisted

of a “passing remark . . . during a lengthy direct examination”);

Daley, ¶ 98 (erroneous admission of testimony about the

consistency of the victim’s statements was harmless, in part

because it was “brief and fleeting”).

¶ 77 Second, the witnesses didn’t directly opine that the victim’s

testimony was truthful or untruthful, instead saying only that her

injuries were consistent with her statements on the scene. See

Gaffney, 769 P.2d at 1088 (erroneous admission of truthfulness

testimony was harmless, in part because it was not as direct as “the

prosecuting attorney ask[ing] [an] expert witness to offer an opinion

on whether a [victim] was truthful on a particular occasion”).

¶ 78 Third, both witnesses testified as lay witnesses, which further

“mitigate[d] the potential power of [their] remark[s].” People v.

Eppens, 979 P.2d 14, 18 (Colo. 1999) (erroneous admission of a

social worker’s testimony that the victim’s statements were

“sincere” didn’t rise to the level of plain error, in part because the

social worker testified as a lay witness).

34

¶ 79 Fourth, the victim herself testified before the officer and the

paramedic, which “provid[ed] the jury with a full opportunity to

judge her credibility in light of her demeanor” and her prior

statements. Id. (erroneous admission of truthfulness testimony

didn’t amount to plain error where “[the victim] herself testified and

was vigorously cross-examined prior to the [challenged testimony]”).

¶ 80 Fifth, the testimony “was not without corroboration.” Gaffney,

769 P.2d at 1089 (erroneous admission of truthfulness testimony

was harmless, in part because the testimony was corroborated by

physical findings and other testimony); see also Eppens, 979 P.2d

at 19 (erroneous admission of truthfulness testimony didn’t amount

to plain error, in part because the statements were corroborated by

other evidence). Indeed, the jury heard the victim’s statements in

her 911 call, saw the video of the victim’s statements at the scene,

heard other witnesses recount her statements at the scene, and

received photos of her injuries. The jury also heard descriptions of

the injuries from other witnesses — including unchallenged

testimony from one of the responding officers that a bruise on the

victim’s leg appeared like “somebody’s knuckles from their hand”

35

and that the cut on the victim’s neck was consistent with the width

of the chain she was wearing at the time.

¶ 81 And sixth, the court gave the jury detailed instructions on

evaluating witness credibility. The court told the jurors that they

“are the sole judges of the credibility of . . . each witness . . . [and] of

the weight to be given to the witness’s testimony.” It also instructed

them to consider, among other things, each witness’s “knowledge,

motive, state of mind, demeanor, and manner while testifying,” as

well as each witness’s “ability to observe,” “the strength of [their]

memory,” and “how that person obtained [their] knowledge.” This

instruction further mitigated any harm that might’ve resulted from

the testimony. See Gaffney, 769 P.2d at 1089 (erroneous admission

of a doctor’s testimony that the victim’s statement to him was “very

believable” was harmless, in part because “the trial court had

cautioned the jury that it was their prerogative to determine what

weight and credit to give [the victim’s] statement to the doctor”).

VI. Disposition

¶ 82 The judgment is affirmed.

JUDGE TOW and JUDGE KUHN concur.