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22CA1683 Peo v Pelaccio 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1683

El Paso County District Court No. 20CR3390

Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

Jesse Edward Pelaccio,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE FOX

Johnson and Schock, JJ., concur

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

Announced September 12, 2024

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

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

Public Defender, Denver, Colorado, for Defendant-Appellant

¶ 1 Defendant, Jesse Edward Pelaccio, appeals his convictions,

contending that the district court erred by (1) admitting a

prosecution expert’s testimony; (2) refusing to admit his alternate

suspect’s confession as an excited utterance; and (3) violating his

constitutional right to be present for all critical stages of trial by

taking the jury’s verdict in his absence. We reject each contention

and affirm the judgment of conviction.

I. Background

¶ 2 On May 14, 2020, in Colorado Springs, a teenage boy, his

brother, and a friend were taking turns riding a dirt bike around a

small dirt track in a field behind Pelaccio’s house around 8:00 p.m.

As the teen victim rode the bike around the track, he described

hearing a “loud ping,” though he did not think much of it, assuming

a rock had struck the bike’s frame. Thirty or forty seconds later,

the victim switched with his brother, who started to ride the bike

while the victim waited for his next turn. While the victim was

standing near the track, he felt the impact of what he thought was a

BB gun but heard no gunshot. He and his friend ran for cover

before he felt blood running down his arm, while his brother drove

the dirt bike down a nearby street to meet them once he realized

what happened.

¶ 3 The victim and his brother testified that Pelaccio approached

them after the victim’s brother yelled, “Hey, are you the one

shooting?” Pelaccio responded: “No one is shooting. I’m trying to

put my kid to sleep. Why are you guys riding dirt bikes here?” The

victim’s brother testified that, without being prompted, Pelaccio

said, “I don’t even own a rifle.” According to the victim, Pelaccio

urged them to come to his house because he was an army medic

and would remove the bullet. The victim’s brother also testified

that Pelaccio “kept touching [the victim’s] wound” without gloves.

¶ 4 The victim said that Pelaccio persistently urged the teens not

to go to the hospital because it would “open an investigation” and

would be a “hassle.” The victim testified that Pelaccio seemed more

concerned about retrieving the bullet than about his well-being.

After refusing Pelaccio’s offer to remove the bullet, the victim

traveled to the hospital where the wound proved to be caused by a

.22 caliber bullet. The bullet was removed about a month later.

¶ 5 Pelaccio’s friend, Dacoda Hensel, was living with Pelaccio on

the day of the shooting and provided his recollection at trial.

Hensel testified that he remembered Pelaccio “running” out the

front door of the house, with Hensel and Pelaccio’s wife following

him, before Pelaccio returned and told them to stay in the house.

He also said that he saw Pelaccio speaking with two people in the

field behind the house. Hensel then testified, and video surveillance

confirms, that minutes after the shooting, Pelaccio began collecting

incriminating items, including a .22 caliber rifle, an ammo box, and

ammunition from his gun safe. Hensel also testified that he helped

Pelaccio look for .22 shell casings in the backyard,

before another

friend, Patrick Defile, arrived. Defile testified that Hensel placed a

.22 caliber rifle and “small caliber things” into his truck.

Hensel was granted immunity for his testimony shortly before

trial.

Pelaccio’s home surveillance system captured footage showing that

Hensel went to the field, then returned to the house to change his

clothes and exited his room with a handgun in his waistband before

he and Pelaccio’s wife left the house, and Pelaccio returned.

Surveillance footage showed that Hensel went to the backyard,

searched the ground with a phone flashlight, and then deposited

some small items into an ammo box.

Defile also testified after being granted immunity.

¶ 6 Hensel later testified that, on Pelaccio’s instruction, he met

with Defile on the side of a road to reacquire the items, with Defile

passing Hensel a trash bag. Pelaccio instructed Hensel to drive

alone and take the trash bag to Penrose, Colorado, a rural area

about an hour away. But when mechanical issues caused Hensel

to stop at a gas station, Pelaccio came and helped restart the truck.

Pelaccio then drove Hensel to his friend John Koehn’s house.

¶ 7 At Koehn’s house, Hensel and Pelaccio hid the trash bag in a

crevice between rocks and covered the crevice with additional rocks.

Hensel later took police to this location and inside the bag was a .22

caliber Ruger rifle; a rifle suppressor; and an ammo box containing

a .22 caliber handgun, ammunition, and another rifle suppressor,

all owned by Pelaccio.

¶ 8 Before the shooting, Pelaccio had called the police several

times to report individuals making noise and riding dirt bikes in the

field behind his house. When police came to speak to Pelaccio days

after the shooting — with a warrant to recover surveillance

equipment at his home — he told police that he did not own any .22

caliber firearms, and his surveillance system was not plugged in.

¶ 9 However, a police officer in the Digital Forensic Unit testified

that the digital video recorder system from Pelaccio’s home

surveillance system contained footage from May 14, 2020, that had

been reformatted but was recoverable. Pelaccio’s surveillance

cameras (installed on the exterior and interior of his house)

captured the events inside the house and on the field. The footage

from an exterior camera shows that at 7:52 p.m., a teen first

appears on a dirt bike in the field. At 8:01 p.m., a dirt biker is seen

driving on the road along the fence immediately behind Pelaccio’s

house, matching the victim’s brother’s testimony — thus by 8:01

p.m., the victim had been shot.

¶ 10 Inside the home, the cameras show Pelaccio retrieving a rifle

with a scope and suppressor from his ground-floor-level gun safe

next to his back door at 7:56 p.m., before going to his garage with

the rifle. From his garage he enters a chicken coop in the backyard,

then returns to his garage without the rifle between 7:56 and 7:57

Government records proved that Pelaccio owned the .22 Ruger

rifle recovered from the rocks on Koehn’s property.

p.m. Pelaccio then goes back through the garage to the chicken

coop before returning to the garage with the rifle between 7:57 and

7:58 p.m. From the garage he then goes to his back door by the

gun safe, stands for a moment, and sets the rifle down to look

through the glass. He then opens the interior back door and slides

down the top window portion of the exterior storm door. Pelaccio

next steps out to his backyard for a few seconds before returning to

the back door at 8:00 p.m.

¶ 11 Five seconds later he stabilizes the rifle on the lowered back

storm door window — extending the barrel through the open

portion looking through the scope of his rifle in the direction of the

field — and appears to pull the trigger.

Over the next half hour,

Pelaccio and Hensel go to the field before returning to the house to

begin collecting the incriminating items.

¶ 12 The jury found Pelaccio guilty of attempt to commit second

degree murder with two crime of violence sentence enhancers for

using a deadly weapon which caused serious bodily injury, first

Police photographs and laser-imaging tools indicated that the

victim, according to the victim’s general approximation of his

location when he was shot, would have been visible from Pelaccio’s

back door. A defense expert challenged this conclusion.

degree assault with the same sentence enhancers, tampering with

physical evidence, and tampering with a witness. The district court

sentenced Pelaccio to serve twenty-two years in the custody of the

Department of Corrections, plus three years of parole. This appeal

followed.

II. Analysis

¶ 13 On appeal, Pelaccio raises three issues arguing that the

district court erred by (1) admitting the prosecution’s rebuttal

expert witness’s testimony; (2) refusing to admit the defense’s

proffered testimony concerning Hensel’s alleged confession as an

excited utterance; and (3) allowing the jury to give the verdict in his

absence, violating his right to be present for all critical stages of

trial. We affirm.

A. The Prosecution Expert’s Rebuttal Testimony Was Relevant

¶ 14 Pelaccio first argues that a prosecution rebuttal expert’s

testimony was irrelevant because it was not “useful” for the jury,

and therefore inadmissible, because he (1) used a different model

.22 caliber rifle than Pelaccio used; (2) possibly used different

ammunition; and (3) called it an “experiment” implying reliability.

Thus, he contends that the challenged testimony only confused the

jury, was inadmissible under CRE 702, and did not rebut the

defense expert’s testimony. Further, Pelaccio argues that even if

the testimony was admissible, it was overly prejudicial and violated

CRE 403.

1. Additional Facts

¶ 15 Pelaccio’s main defense at trial was that he could not have

fired the shot that hit the victim, arguing that his alleged vantage

point and the type of gun used made it impossible. Instead,

Pelaccio contended that Hensel used an unrecovered .22 caliber

rifle to shoot the victim from the kitchen window on the second

floor. Pelaccio’s primary expert and fact witness to support this

theory, Norvell West, was admitted as “an expert in the fields of

ballistics materials, telemetry, and shot replication and

experimentation.” West also described himself as a mentor to

Pelaccio. On cross-examination, West testified that he had known

Pelaccio since he was in high school, that Pelaccio had dated his

daughter, and that West’s and Pelaccio’s fathers had worked

together.

¶ 16 During the expert portion of West’s testimony, West said the

odds of Pelaccio being able to shoot the victim as the prosecution

alleged was “600,000 to 1.” This conclusion was based on testing

West had overseen at an outdoor shooting range his company

owned, where a marksman fired Ruger-brand .22 caliber rifles at a

mannequin placed 188 yards away (the approximate distance

between Pelaccio and the victim). The first rifle was a “breakdown

Ruger” .22 caliber long range rifle that was the “same general make

and model” as Pelaccio’s, which West described as “the best replica

of [Pelaccio’s] weapon we could find,” and they used lead subsonic

.22 caliber long range ammunition, the same kind as recovered

from the victim and owned by Pelaccio. West’s marksman

reportedly could not hit the mannequin using the breakdown Ruger

at 188 yards and reported “feed issues” when reloading. In another

test, using a more expensive and higher quality Ruger rifle and

higher quality copper ammunition, West reported that the

marksman hit the target.

¶ 17 West also testified that only with the higher quality Ruger rifle

and copper ammunition could his marksman reliably penetrate a

hoodie sweatshirt on the mannequin (simulating the victim’s outfit)

at 188 yards, noting that some of the shots failed to penetrate the

fabric. West ultimately opined that the rifle recovered by police did

not cause the victim’s injuries.

¶ 18 To rebut West, the prosecution called Sergeant Paul Malchow,

who was admitted as an expert “in firearms and long range

shooting.” Malchow testified that he conducted a range test using

“a standard Carbine .22” without any modifications, a “stock rifle

just to make it as close to what anybody” could pick “up off the

shelf” from any sporting goods store “with a relatively inexpensive

scope [to] replicate” a similar shot. Malchow also testified that he

used ammunition in evidence “seized from [Pelaccio].” Using this

rifle and ammunition, Malchow testified that he hit a paper torso

target ten out of ten times at 188 yards using a stabilized bench

and four out of five times from a standing position stabilizing the

rifle on a fencepost, without misfires or feed issues. As to the

ammunition’s penetration capabilities, Malchow testified that the

latter five of his shots penetrated a three-quarter-inch piece of

plywood placed behind the paper target.

¶ 19 Malchow concluded that the shot was possible and that he

could train “just about anybody” to make such a shot. Malchow

also agreed on redirect that, in his opinion, a .22 caliber rifle could

harm or kill a person from 188 yards away.

¶ 20 Malchow also testified that the rifle he used was “similar” to

Pelaccio’s, although Pelaccio’s “ha[d] a barrel that [wa]s removable

from the action or the receiver of the gun” while Malchow’s had a

fixed barrel. Malchow admitted that Pelaccio’s rifle was possibly

“slightly less accurate” than the one he used in his testing. But on

redirect, Malchow testified that he felt that using the exact same

model gun was unnecessary as they were similar enough.

¶ 21 When cross-examined about the type of ammunition he used,

Malchow testified that there were three boxes of ammunition in

evidence and that he used “only ammunition that looked like the

hollow point ammunition specified on the packaging.” He added

that he could not “with 100 percent certainty” be sure that the

ammunition he used was what the box purported it to be, and he

did not use a chronometer to measure the speed of the bullets.

From his experience Malchow was confident it was subsonic

ammunition, and he testified that the box of ammunition he used

did not contain “mixed ammunition.”

2. Standard of Review and Applicable Law

¶ 22 We review a district court’s decision to admit expert testimony

for an abuse of discretion, which occurs when its “ruling was

manifestly arbitrary, unreasonable, or unfair, or if it misapplied the

law.” People v. Lowe, 2020 COA 116, ¶ 26. “[A] trial court has

broad discretion to determine the admissibility of expert testimony.”

Id. at ¶ 28.

¶ 23 CRE 702 permits a qualified expert witness to testify if his

“scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in

issue.” “When an expert’s testimony is scientific in nature, the

evidence must be relevant and reliable to be admitted.” Lowe, ¶ 28.

¶ 24 Pelaccio only challenges the relevance of Malchow’s testimony,

so “[t]o determine relevancy under CRE 702, the court should

consider whether the expert testimony would be useful to the fact

finder.” People v. Ramirez, 155 P.3d 371, 379 (Colo. 2007). In this

context, “[u]sefulness means that the proffered testimony will assist

the fact finder to either understand other evidence or to determine a

fact in issue. Usefulness thus hinges on whether there is a logical

relation between the proffered testimony and the factual issues

involved in the case.” Id. (citation omitted). But expert testimony

admissible under CRE 702 must still have probative value not

substantially outweighed by its risk of prejudice in accordance with

CRE 403. Id. “Essentially, evidence should be excluded when it

has an undue tendency to suggest a decision on an improper

basis.” Id.

3. Analysis

¶ 25 Malchow’s expert testimony was useful because it helped the

jury assess West’s testimony, and it was logically related to

disputed issues in the case — whether Pelaccio could have shot and

injured the victim. See id.

¶ 26 Malchow’s testimony rebutted West’s testimony implying that

Pelaccio could not have shot the victim because (1) the rifle was

physically incapable of hitting a target at that range even in the

hands of a trained marksman; and (2) even if it had hit the victim,

the bullet likely would not have penetrated the victim’s sweatshirt.

Malchow’s testimony simply informed the jury that another trained

marksman easily hit the target with a similar, albeit more accurate,

.22 caliber rifle in a shooting test. Further, the ammunition seemed

capable of penetrating the victim’s sweatshirt because it went

through plywood. Therefore, it provided the jury with information

to weigh against West’s testimony. See id.

¶ 27 And to Pelaccio’s CRE 403 concerns, Malchow’s testimony did

not have an “undue tendency to suggest a decision on an improper

basis” risking unfair prejudice. It was merely evidence detailing the

results of another marksman’s shooting test that were contrary to

West’s. See Ramirez, 155 P.3d at 379; see also People v. Hulsing,

825 P.2d 1027, 1031 (Colo. App. 1991) (“Evidence is unfairly

prejudicial if it appeals to the jury’s sympathies, arouses its sense

of horror, provokes its instinct to punish, or triggers other

mainsprings of human action.”).

¶ 28 Malchow conceded that (1) the type of rifle he used could have

been more accurate than Pelaccio’s because of its fixed barrel, and

(2) he was not 100% certain that he used the exact same type of

subsonic ammunition retrieved from the victim. Indeed, in cross-

examination, the defense aptly summarized the issue by asking of

Malchow’s testing: “So it’s a close approximation of the rifle and

maybe the right ammunition, right?” To which Malchow responded:

“Yes.”

¶ 29 Pelaccio’s contentions about the differences in the rifles and

ammunition go to the weight of Malchow’s testimony rather than its

relevance or admissibility. See People v. Shanks, 2019 COA 160,

¶ 12 (“Concerns about conflicting opinions or whether a qualified

expert accurately applied a reliable methodology go to the weight of

the evidence, not its admissibility.”). “Such concerns ‘are

adequately addressed by vigorous cross-examination, presentation

of contrary evidence, and careful instruction on the burden of

proof.’” Id. (quoting People v. Campbell, 2018 COA 5, ¶ 42).

¶ 30 The jury heard robust cross-examination revealing the

defense’s concerns with Malchow’s methodology, and the defense

was able to present a contrary view through their own expert.

Further, the jury received the explicit instruction that it could

believe all, some, or none, of an expert witness’s testimony and

decide the weight it gave various experts’ testimony. See

Washington v. People, 2024 CO 26, ¶ 31 (“Absent evidence to the

contrary, we presume the jury understood and followed the court’s

instructions.”).

¶ 31 The district court did not abuse its discretion by admitting

Malchow’s expert testimony. See Lowe, ¶ 26.

B. Hensel’s Alleged Confession was Not an Excited Utterance

¶ 32 Next, Pelaccio contends that the district court erred by

refusing to admit West’s testimony that Hensel allegedly confessed

to shooting the victim to West on the telephone, arguing that while

the alleged confession was hearsay, it should have been admitted as

a CRE 803(2) excited utterance. Pelaccio argues that Hensel’s

statements, despite being made over four hours after the shooting,

were spontaneously made in response to the startling event of the

shooting and extended evidentiary cleanup and were accompanied

by signs of Hensel’s emotional distress.

1. Additional Facts

¶ 33 Pelaccio wanted West to testify about a phone call Pelaccio

made to West late at night after the shooting (around 2:30 a.m. in

Virginia where West lived, 12:30 a.m. in Colorado), during which

Pelaccio asked West to speak to Hensel, who then allegedly

confessed to the shooting. The prosecution objected, arguing the

testimony was hearsay, while the defense responded that it was

admissible as a present sense impression and as an excited

utterance.

¶ 34 The defense argued that West could testify that Hensel was

“yelling,” “panicked,” and “practically foaming at the mouth.”

Despite the court pointing out that the phone call was made several

hours after the shooting, the defense argued it remained an excited

utterance based on the “startling event or condition being that

[Hensel] shot a young man earlier that night.” The defense argued

that the hurried efforts to conceal the evidence afterwards could

likewise be startling events.

¶ 35 The prosecution countered that the long timeframe was

sufficient for evidentiary fabrication to occur, especially given that

Hensel and Pelaccio had already tried to hide evidence of the

shooting by removing incriminating items from the house.

¶ 36 The district court ultimately refused to admit the testimony as

an excited utterance, highlighting that four and a half hours had

On appeal, Pelaccio does not contend that the testimony should

have been admitted as a present sense impression. See Moody v.

People, 159 P.3d 611, 614 (Colo. 2007) (It is a “basic principle of

appellate jurisprudence that arguments not advanced on appeal are

generally deemed waived.”).

elapsed between the shooting and the phone call and that Pelaccio

and Hensel engaged in a “fair amount of planning” to hide evidence

during that time.

2. Standard of Review and Applicable Law

¶ 37 We review a district court’s decision to admit or exclude

evidence for an abuse of discretion. People v. Pernell, 2014 COA

157, ¶ 30, aff’d, 2018 CO 13.

¶ 38 CRE 803(2), a hearsay exception, provides that “statement[s]

relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or

condition” are admissible at trial. An excited utterance “is

admissible even though the declarant is available as a witness.”

People v. Martinez, 18 P.3d 831, 835 (Colo. App. 2000). The

proponent of a purported excited utterance must establish three

conditions:

(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.

People v. Vanderpauye, 2023 CO 42, ¶ 42.

¶ 39 Where “the circumstances surrounding an excited utterance

‘eliminate the possibility of fabrication, coaching, or confabulation,’

they lend sufficient trustworthiness to overcome the hearsay rule’s

proscription.” Id. at ¶ 41 (quoting Idaho v. Wright, 497 U.S. 805,

820 (1990)).

3. Analysis

¶ 40 Pelaccio’s main argument is that, despite the four-and-a-half-

hour delay between the shooting and the phone call, Hensel

remained under the stress of the startling event — having allegedly

shot someone and then cleaned up the evidence. Thus, Hensel

could not engage in reflective thought and his alleged confession

was spontaneous.

¶ 41 Pelaccio is correct that the time frame in which the statement

is made is not dispositive. See People v. Lagunas, 710 P.2d 1145,

1148 (Colo. App. 1985). But because the statements occurred well

after the events and after Hensel helped hide evidence of the

shooting, they were sufficiently detached from the startling events

to allow for a normal reflective thought process and, thus, lacked

the indicia of trustworthiness and low probability of fabrication that

characterizes an excited utterance.

¶ 42 The post-shooting videos clearly show Hensel and Pelaccio

engaging in, as the district court put it, a “fair amount of planning”

for an evidentiary coverup. The district court was in the best

position to consider the effect of the alleged startling events on the

declarant, and the record strongly supports the court’s decision

that the statement was not a spontaneous reaction to a sufficiently

startling event. See People v. Martinez, 83 P.3d 1174, 1177 (Colo.

App. 2003); People v. King, 121 P.3d 234, 238 (Colo. App. 2005).

¶ 43 Where a declarant actively and demonstrably engaged in a

coverup before allegedly making the challenged statement, a higher

possibility of fabrication exists. See Vanderpauye, ¶ 41. This is

particularly true when, according to West, Pelaccio called West

asking him to speak to Hensel so that Hensel could then confess.

Here, Hensel’s alleged statement does not qualify as an excited

utterance.

¶ 44 This is true even considering West’s testimony that Hensel was

“panicked” and “practically foaming at the mouth” when he spoke

with him over the phone. That Hensel was upset does not mean

that his confession is an excited utterance free from reflective

thought. See Pernell, ¶ 34 (sexual assault victim’s statements

twelve hours after the events, despite her demeanor being described

as “distraught,” “traumatized,” and “terrified,” were not admissible

as excited utterances because evidence indicated that she had been

able to engage in reflective thought — including going home,

speaking with her boyfriend, and changing her clothes — making

her statements nonspontaneous); see also People v. Stephenson, 56

P.3d 1112, 1115 (Colo. App. 2001) (wife’s statements made three

hours after witnessing a shooting and after speaking to friends,

going to her mother’s home and work, and speaking with her

daughter were too far removed from the startling event allowing for

reflective thought and, thus, were not excited utterances despite

officers describing her demeanor as “bordering on panic”).

¶ 45 As a result, the district court did not err by refusing to admit

Hensel’s alleged confession to West as an excited utterance. See

Pernell, ¶ 30. And because Hensel’s alleged confession was not an

excited utterance and was thus inadmissible, the trial court also did

not violate Pelaccio’s constitutional right to present a defense. See

People v. Scearce, 87 P.3d 228, 233 (Colo. App. 2003) (“[T]he right to

present a defense does not guarantee a defendant a right to

question witnesses in violation of the rules of evidence or to produce

inadmissible hearsay.”).

C. Pelaccio’s Absence During the Jury’s Verdict Was Harmless

¶ 46 Finally, Pelaccio argues that because his absence for the

verdict — after being taken to the hospital due to a medical issue —

was involuntary, his right to be present for this stage of trial was

violated. Pelaccio argues he was prejudiced because his presence

could have “psychologically influence[d]” the jury and urges us to

reject the holding in People v. Burnell, 2019 COA 142, because the

case impermissibly shifts to the defense the burden of proving the

harmlessness of a defendant’s absence from trial proceedings.

1. Additional Facts

¶ 47 After the jury went to deliberate, the district court told the

parties to remain within ten minutes of the courthouse. As

deliberations continued and the jurors raised three questions,

Pelaccio personally waived his right to be present for “subsequent

juror questions,” which the court accepted as a knowing and

intelligent waiver. The jury later reached a verdict — but Pelaccio

was not present for the jury’s verdict or polling because he “had a

medical incident in the hallway outside the courtroom that led to

[the district court] clerk calling 911. And the fire crew and the

ambulance crew came and took Mr. Pelaccio away, presumably, to

the hospital.”

The record contains no further information on what

precisely happened to Pelaccio in the hallway, or the severity of the

incident, though Pelaccio’s counsel confirmed to the court that his

client had been taken to the hospital. After the verdict’s

announcement, the defense asked for a poll, and each juror

confirmed the verdict.

2. Standard of Review and Applicable Law

¶ 48 “Article II, section 16, of the Colorado Constitution, and the

Due Process Clause, as well as the Sixth Amendment to the United

States Constitution, guarantee the right of a criminal defendant to

be present at all critical stages of the prosecution.” People v. White,

870 P.2d 424, 458 (Colo. 1994). This includes from the time a jury

is impaneled until the jury renders the verdict. Burnell, ¶ 6. “This

There was confusion concerning the timeline of these events, but a

supplementary and corrected court transcript resolved these issues.

According to the corrected transcript, at 1:22 p.m. on May 20,

2022, the court returned from recess to discuss the submitted juror

questions and then took another recess after Pelaccio waived his

right to be present for further juror questions at 1:40 p.m. The

court noted that the medical incident occurred “around 4:00 to 4:10

[p.m.]” The jury gave their verdict after 4:48 p.m.

right is personal to the defendant, and counsel may not waive it for

the defendant. That said, the right to be present is not absolute. A

defendant may waive [his] right to be present either expressly or

through [his] conduct.” People v. Janis, 2018 CO 89, ¶¶ 16-17

(citations omitted).

¶ 49 “Whether proceeding with trial in the absence of the defendant

was appropriate . . . rests on whether the trial court correctly

determined that the defendant waived his right to be present by

voluntarily absenting himself.” Burnell, ¶ 8. In the context of

medical issues specifically, a division of this court in Stephenson

held that “absence from trial compelled by medical necessity may

generally be deemed voluntary [but] determining whether a

defendant is ‘voluntarily absent’ . . . requires a fact-specific inquiry

into the type of medical condition and the circumstances

surrounding [the] absence.” People v. Stephenson, 165 P.3d 860,

870 (Colo. App. 2007).

¶ 50 “Whether a trial court violated a defendant’s constitutional

right to be present at trial is reviewed de novo.” Janis, ¶ 14.

“Where preserved, error in the denial of a defendant’s right to be

present is reviewed for constitutional harmless error.” Burnell, ¶ 8.

“These errors require reversal unless the reviewing court is ‘able to

declare a belief that [the error] was harmless beyond a reasonable

doubt.’” Hagos v. People, 2012 CO 63, ¶ 11 (alteration in original)

(quoting Chapman v. California, 386 U.S. 18, 24 (1967)).

¶ 51 Pelaccio’s counsel did not object to the jury delivering the

verdict in Pelaccio’s absence. But because Pelaccio was taken to

the hospital and could not have personally agreed to the jury

reading the verdict without him, and counsel cannot waive his right

to be present for critical proceedings, we conclude that we must

review any error for constitutional harmless error. See Crim. P. 51

(“[I]f a party has no opportunity to object to a ruling or order, the

absence of an objection does not thereafter prejudice him.”).

3. Analysis

¶ 52 The district court did not probe the details of the medical

issue. Even so, it is enough for us to know that Pelaccio was taken

to the hospital after the clerk called 911, indicating symptoms

sufficiently severe for an objective observer to believe emergency

medical attention was necessary.

¶ 53 While the division in Stephenson did not differentiate between

a medical condition caused by a defendant’s voluntary conduct and

an unexpected medical condition, the cases it relies on focus on

medical issues that are, at least in part, caused by the defendant.

See 165 P.3d at 869-70 (collecting federal and state cases where a

defendant’s absence from trial due to a medical condition may be a

voluntary absence); United States v. Edwards, 303 F.3d 606, 624-

29 (5th Cir. 2002) (holding that a defendant’s absence from trial

due to a serious heart condition requiring surgery was voluntary

because the record supported that the defendant avoided

scheduling his surgery earlier, against the advice of medical

professionals, as part of a deliberate and informed trial strategy);

State v. Clark, 2005 MT 169, ¶¶ 5, 15-16, 327 Mont. 474, 115 P.3d

208 (defendant was voluntarily absent for trial after he

“unnecessarily” checked himself into the hospital after an alleged

“history of continuing trials on the basis of a physical ailment,”

without “verification of his ailment”).

¶ 54 We conclude that the record here does not support the

conclusion that Pelaccio’s absence was voluntary. A defendant who

unexpectedly requires emergency medical attention and

hospitalization — without any evidence that the emergency resulted

from a strategic ploy or the defendant’s intentional actions —

cannot be a voluntary absence. Even if Pelaccio waived his right to

be present for jury questions, he never waived his right to be

present for the verdict’s announcement.

¶ 55 The district court never made a finding that Pelaccio’s absence

from trial was voluntary, nor did it inquire, on the record, into the

details of the absence. Thus, the district court erred by taking the

verdict without ascertaining if Pelaccio’s absence was voluntary.

See Burnell, ¶¶ 13-17.

¶ 56 The question then is whether Pelaccio’s absence was harmless.

Pelaccio asks us to depart from Burnell, where the division

concluded that the district court erred when it failed to inquire into

why a defendant appeared late to the jury verdict and, instead,

assumed that the absence was voluntary. See id.

¶ 57 The defendant there argued that he could not poll the jury

(because his counsel declined to conduct a poll while he was gone)

but if he had, his presence could have swayed a juror to change

their mind — much like Pelaccio’s argument here. See id. at ¶¶ 18-

20. But the division found that the error was harmless because

“any suggestion that a poll of the jury could have altered the

outcome is wholly speculative.” Id. at ¶ 21.

¶ 58 As to Pelaccio’s burden shifting point, the Burnell division

recognized “that it is not [the defense’s] burden to demonstrate

harm here. Rather, the People must prove harmlessness of

constitutional error beyond a reasonable doubt.” Id. at ¶ 22. But

the division concluded that “demonstrating constitutional

harmlessness does not require dispelling wholly speculative

concerns.” Id. The division also noted that in cases where there is

a “reasonable possibility” an error may have contributed to the

defendant’s verdict, such as where a jury required instruction on a

deadlock or a particular juror expressed hesitancy in a poll, the

error might not be harmless. Id. at ¶¶ 23-24.

¶ 59 Burnell is well reasoned, and we see no reason to depart from

it. Like in Burnell, Pelaccio requests we reverse his convictions on

the wholly speculative grounds that his presence might have caused

a juror to change their mind. But Pelaccio points us to three juror

questions as proof that the jury was struggling to convict Pelaccio:

Can we hear the evidence associated with the

charge of Tampering with a Witness, on or

about September 14, 2020?

[I]s the witness connected to the charge of

Tampering with a Witness at or about 14

September of 22, 2020, Patrick Defile?

And what exhibit numbers are associated with

the charge of Tampering with a Witness?

To be fair, Burnell indicated that a reasonable possibility that the

error contributed to the verdict may occur when the record

demonstrates “the existence of jury questions that reflect juror

reluctance.” Id. at ¶ 24. But these questions reflect the jury’s

requests for information or clarification, which do not, without

more, reflect that the jury was deadlocked or flummoxed. And,

unlike in Burnell, Pelaccio’s counsel requested a poll of the jury,

and there is nothing we can discern from the record in terms of the

tone or demeanor of the jury that reflects any hesitance.

¶ 60 We agree with Burnell that constitutional harmlessness does

not require the prosecution to refute wholly speculative concerns,

especially when the only record evidence is a polled unanimous jury

verdict that contradicts Pelaccio’s speculative concerns. See id. at

¶¶ 22-24. In accordance with Burnell we conclude that, though the

district court erred, the error was harmless beyond a reasonable

doubt.

III. Disposition

¶ 61 We affirm the judgment of conviction.

JUDGE JOHNSON and JUDGE SCHOCK concur.