Peo v. Ramirez

22CA0147 Peo v Ramirez 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0147

City and County of Denver District Court No. 19CR8711

Honorable David H. Goldberg, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Alexander Ramirez,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE NAVARRO

Pawar and Johnson, JJ., concur

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

Announced August 1, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Crane & Tejada, P.C., Beale C. Tejada, Denver, Colorado, for Defendant-

Appellant

1

¶ 1 Defendant, John Alexander Ramirez, appeals the judgment of

conviction imposed on jury verdicts finding him guilty of three

counts of second degree assault causing serious bodily injury. We

reverse and remand for a new trial.

I. Factual and Procedural History

¶ 2 The evidence admitted at trial allowed the jury to find that the

following events occurred. Because we remand for a new trial, we

express no opinion on whether the allegations against Ramirez are

true.

¶ 3 In November 2019, police officers responded to the home of

the alleged victim

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after receiving a report of a domestic violence

incident. Jeffrey Hahl, the victim’s neighbor, had called the police

after he saw her in the street “[l]oudly calling for help.” Upon

arrival, the officers observed that the victim had lacerations on her

face as well as several broken or dislodged teeth. The victim

informed the officers that she and Ramirez got into an argument

and that he struck her multiple times in the face with a closed fist.

She also said she had attempted to defend herself with a

1

For brevity’s sake, we will refer to her as the “victim,” going

forward.

2

pocketknife; however, she claimed that Ramirez took the

pocketknife from her and cut her face with it. The interaction

between the victim and officers was recorded by the officers’ body

cameras.

¶ 4 Ramirez was ultimately arrested and charged with first degree

assault, two counts of second degree assault, and child abuse.

Before trial, he waived his right to counsel and represented himself.

The trial court appointed advisory counsel and a defense

investigator.

¶ 5 Although under subpoena, the victim did not appear at trial,

but her statements to the police and her neighbor were admitted

into evidence. A jury acquitted Ramirez of first degree assault but

convicted him of three counts of second degree assault.

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¶ 6 On appeal, Ramirez contends that the trial court (1) erred by

concluding that he had opened the door to admission of the victim’s

hearsay statements on an unredacted video recorded from an

2

One of the second degree assault convictions represented a lesser

included offense of the first degree assault charge. The trial court

dismissed the child abuse count on Ramirez’s motion for judgment

of acquittal.

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officer’s body camera; (2) violated his constitutional right to

confrontation by admitting those statements (because the victim did

not testify at trial); (3) erred by denying his request to rescind his

waiver of the right to counsel; and (4) erred by denying his request

to continue the trial based on the alleged discovery of new evidence.

¶ 7 Because we agree with his first contention, we reverse the

judgment and remand for a new trial. In light of that decision, we

need not resolve Ramirez’s other contentions.

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II. Opening the Door to Hearsay

¶ 8 We agree with Ramirez that the trial court erred by ruling that

his questioning of Officer Matthew Van Portfliet opened the door to

admission of the victim’s hearsay statements on the unredacted

video recorded from the officer’s body camera.

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To the extent the parties argue that we should also address the

constitutional issues raised on appeal, we decline to do so because

it is not necessary to resolve this appeal. Under the doctrine of

constitutional avoidance, we address constitutional issues only if

necessary. People v. Valdez, 2017 COA 41, ¶ 6; see also People v.

Lybarger, 700 P.2d 910, 915 (Colo. 1985) (“Axiomatic to the exercise

of judicial authority is the principle that a court should not decide a

constitutional issue unless and until such issue is actually raised

by a party to the controversy and the necessity for such decision is

clear and inescapable.”).

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A. Standard of Review and Applicable Law

¶ 9 The People concede that Ramirez preserved this claim, and we

concur.

¶ 10 We review for an abuse of discretion a trial court’s decision to

admit evidence. People v. Glover, 2015 COA 16, ¶ 10. “A court

abuses its discretion if it misconstrues or misapplies the law or

otherwise reaches a manifestly arbitrary, unreasonable, or unfair

result.” Id.

¶ 11 The judicially created doctrine of “opening the door” aims to

prevent one party from gaining an “unfair advantage by the selective

presentation of facts that, without being elaborated or placed in

context, create an incorrect or misleading impression.” People v.

Murphy, 919 P.2d 191, 195 (Colo. 1996). Thus, “[w]hen a party

opens the door to inadmissible evidence, his opponent may then

inquire into the previously barred matter” more fully in order to

provide a complete picture of the evidence. Id.

¶ 12 The opening the door doctrine, however, has limits. People v.

Cohen, 2019 COA 38, ¶ 23. It does not give an opposing party

“unbridled license to introduce otherwise inadmissible evidence into

the trial, nor does it justify receipt of rebuttal evidence merely

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because it is in the same category of excludable evidence as the

evidence previously offered.” Id. (quoting United States v. Martinez,

988 F.2d 685, 702 (7th Cir. 1993)). Rather, when one party injects

a particular issue into a case, the opposing party may introduce

otherwise inadmissible evidence but only to the extent necessary to

“rebut any adverse inferences which might have resulted” from the

original evidence, People v. Tenorio, 197 Colo. 137, 146, 590 P.2d

952, 958 (1979), or to correct “an incorrect or misleading

impression,” Golob v. People, 180 P.3d 1006, 1012 (Colo. 2008).

B. Additional Facts

¶ 13 As a result of the victim’s failure to appear at trial, the

prosecution chose to redact portions of the video from Officer Van

Portfliet’s body camera to omit the victim’s statements. In the

redacted version, the audio of her statements was mostly muted,

but the video depicted her talking as well as her demeanor.

¶ 14 When the officer testified on direct examination, the

prosecutor carefully avoided eliciting any hearsay statements of the

victim. The prosecutor explicitly instructed the officer to avoid

restating any of the victim’s comments and to discuss only what the

officer actually observed. The officer described the victim’s behavior

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and appearance. The officer also testified that he did not observe

anything from the victim that gave him concerns about her

intoxication.

¶ 15 The prosecution offered into evidence Exhibit 2, which was

video from the officer’s body camera but with the victim’s

statements redacted. The officer then testified to the victim’s

reluctance to cooperate in the investigation. Specifically, he

testified that the victim did not agree to have him take photographs

her injuries and that she did not agree to have her home processed

by the crime scene unit (which would have included taking

photographs of the home). Noting that the victim was being

transported to the hospital, the officer also said the victim did not

agree to cooperate when he informed her that officers would

respond to the hospital “to complete further paperwork.”

¶ 16 On cross-examination of the officer, Ramirez asked a handful

of questions. As relevant here, Ramirez engaged in the following

colloquy with the officer:

Q: [The victim] told you that the knife was

hers?

A: Yes.

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Q: Did she tell you how the argument started?

A: No, not that I recall.

Q: Okay. Didn’t tell you she was drinking or

that she might have been smoking meth?

A: No.

Q: You asked if she would allow the crime lab

into the house to take pictures?

A: Yes.

Q: And she told you no?

A: Correct.

Q: She refused to let the officers back in the

house to conduct a legal investigation?

A: Yes. She stated she didn’t want any photos

taken of the house.

Q: Then she stopped cooperating altogether?

A: Correct.

¶ 17 Based on this questioning, the prosecutor moved to admit the

unredacted video of the officer’s interaction with the victim from the

body camera (Exhibit 3). The prosecutor argued that, because

Ramirez had elicited some “statements made” by the victim during

her interaction with the officer, Ramirez had necessarily opened the

door to all the victim’s statements during that interaction. But the

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prosecutor did not argue that Ramirez’s cross-examination

questions had left any misleading impression with the jury or

created any adverse inference against the prosecution’s case. Over

Ramirez’s objection, the trial court, in a brief ruling, permitted the

prosecutor to introduce the entire unredacted body camera video.

Like the prosecutor, the court did not identify any misleading

impression or adverse inference created by Ramirez’s questioning.

¶ 18 In addition to showing the victim’s injuries and demeanor, the

unredacted video revealed her statements directly accusing Ramirez

of the charged offenses as well as suggesting his prior criminality.

Specifically, the victim said, “My kid’s dad [Ramirez] knocked out

my teeth,” and “I have missing teeth now.” (Indeed, she frequently

lamented that Ramirez had knocked out her teeth.) She said she

had pulled out a knife for protection and that Ramirez had grabbed

it from her. She claimed that “[Ramirez] hit me with his fist and

knife” and that she was “sliced with a knife” near or on her lip. She

also told the officer that she and Ramirez had been arguing before

he attacked her and that, during the argument, he “put his hands

around my throat.” Finally, she asserted that Ramirez fled on foot

after the altercation because he had been drinking and his vehicle

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had an “interlock” device preventing its use by someone who has

been drinking — suggesting that he had previously committed

offenses of driving under the influence.

C. Analysis

¶ 19 Ramirez contends that his questioning of Officer Van Portfliet

did not open the door to admission of the unredacted video.

Alternatively, he argues that, even if his questioning opened the

door to some degree, admission of the entire video exceeded what

was necessary.

1. Admitting the Unredacted Video Was Error

¶ 20 To reiterate, the purpose of the opening the door concept is to

prevent one party from gaining and maintaining an unfair

advantage by the selective presentation of facts that, without being

elaborated or placed in context, create an incorrect or misleading

impression. Murphy, 919 P.2d at 195. But while courts permit

inquiry into otherwise inadmissible evidence once a party opens the

door, the inquiry is limited to the extent necessary to “rebut any

adverse inferences which might have resulted,” Tenorio, 197 Colo.

at 146, 590 P.2d at 958, or to correct “an incorrect or misleading

impression,” Golob, 180 P.3d at 1012. The opening the door

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doctrine does not justify admission of rebuttal evidence merely

because it is in the same category of excludable evidence as the

evidence previously admitted (e.g., a particular witness’s hearsay

statements). See Cohen, ¶ 23.

¶ 21 In this case, however, the trial court’s ruling seemed to rest on

the misunderstanding that, after one party elicits a portion (even, a

small portion) of a hearsay conversation, the opening the door

doctrine automatically authorizes the opposing party to elicit the

entire hearsay conversation. We say this because the court did not

articulate any misleading impression or adverse inference created

by Ramirez’s questioning that required correction under the

opening the door doctrine. A court abuses its discretion when it

misconstrues or misapplies the law. Glover, ¶ 10.

¶ 22 On appeal, the People argue that Ramirez’s questioning of the

officer sought to characterize the victim’s statements as admitting

that “she was responsible for her injuries (thus implying that he

acted in self-defense).” This argument is puzzling because no one

at trial — including Ramirez — posited that the victim’s injuries

were self-inflicted. And we conclude that no reasonable jury would

infer from Ramirez’s self-defense claim and his brief questioning of

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Officer Van Portfliet that the victim injured herself. As the People

otherwise acknowledge, the self-defense claim was rooted in

Ramirez’s (allegedly justified) use of force against the victim.

¶ 23 The People also contend that Ramirez “elicited testimony

suggesting that the victim owned the knife, was on drugs, and

refused to cooperate with police (again, implying her consciousness

of guilt). This suggestion, however, was contrary to what the victim

had actually told police, misleading the jury on this subject.” The

suggestion that the victim owned the knife, however, was not

contrary to what she had told the officer. She said she pulled out a

knife to defend herself, without mentioning who owned it. And the

People do not attempt to explain how a suggestion that the victim

owned the knife — without indicating who, if anyone, used it or

how — created a misleading impression or an adverse inference

requiring correction.

4

On this point, the People’s argument is

gossamer-thin.

4

Before the unredacted video was admitted into evidence, Ramirez

did not claim that the victim had pulled a knife on him. He first

made this claim in his theory of defense instruction to the jury.

12

¶ 24 Moreover, Ramirez’s question about whether the victim said

she had been drinking or using drugs did not elicit evidence or

create an impression that was contrary to what she told police. As

the officer testified and the video confirms, the victim did not say

anything about her drinking or using drugs, so the officer’s answer

to Ramirez’s question (“no”) did not indicate a conflict with the

victim’s statements to the officer. On a related note, we disagree

that the evidence elicited by Ramirez’s questioning suggested that

the victim was “on drugs.” As noted, Ramirez elicited the officer’s

testimony that the victim had not said she consumed drugs or

alcohol. This testimony was consistent with the officer’s earlier

testimony, elicited by the prosecutor, that the officer did not detect

signs of intoxication in the victim. Therefore, Ramirez’s question

(and the officer’s answer) did not leave a misleading impression or

adverse inference. To the extent any question about the victim’s

possible drug or alcohol use was problematic, the prosecutor went

down that road first.

¶ 25 Likewise, to the extent Ramirez’s questioning of the officer

elicited testimony suggesting that the victim had refused to

cooperate with the police, that testimony was cumulative of

13

evidence previously elicited by the prosecutor. Ramirez elicited

testimony that the victim had refused to let the crime lab take

photographs of the house, refused to let the police back into the

house to conduct their investigation, and “stopped cooperating

altogether.” The officer had already testified to those facts on direct

examination. If those facts suggested the victim’s refusal to

cooperate with the police, the prosecutor’s questioning injected this

suggestion first.

5

¶ 26 In sum, neither the prosecution below nor the People on

appeal identify any adverse inference or misleading impression

created by Ramirez’s questioning of the officer that required

correction through admission of the unredacted video. Hence,

admitting the unredacted video under the opening the door doctrine

was error. And doing so revealed damning evidence against

Ramirez that the jury would not have otherwise heard. The video

allowed the jury to hear the victim’s statements describing the

assault, implying Ramirez had prior legal issues, and accusing him

5

Ramirez’s question whether the victim “stopped cooperating

altogether” did not solicit or elicit a hearsay statement. For this

additional reason, this question did not open the door to all the

victim’s hearsay statements on the unredacted video.

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of fleeing the scene. Indeed, the video gave the jury the victim’s

account of the incident — from the victim herself — in greater detail

than provided by her brief hearsay statement admitted into

evidence through her neighbor’s testimony.

¶ 27 Alternatively, the People contend that the victim’s statements

on the unredacted video were admissible under the excited

utterances exception to the hearsay prohibition. See CRE 803(2).

We decline to resolve this contention because it is inconsistent with

the position the prosecution took in the trial court.

¶ 28 Before trial, it became apparent to the parties that the victim

would not be present to testify. As a result, the prosecutor decided

not to seek admission of the victim’s statements to the officers

recorded on the body camera, and the prosecutor redacted those

statements from the video. The prosecutor noted, however, that he

would seek to admit the victim’s statements to her neighbor under

the excited utterances exception.

¶ 29 Ramirez’s advisory counsel expressed concern about

proceeding to trial without the victim and about admitting the

victim’s statements by way of the excited utterances exception. In

response, the prosecutor said,

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To respond to counsel’s comments, the excited

utterance piece is separate and apart from the

redacted videos. The excited utterance piece is

essentially that . . . [t]he victim exits her

home — this is before police have been

called — makes a number of statements to her

neighbor who observes her in a panic state

with physical injuries. Those would plainly be

excited utterances . . . .

¶ 30 The record reveals, therefore, that the prosecutor argued that

the excited utterance exception applied to the victim’s statements to

the neighbor but conspicuously declined to make this same

argument about the victim’s statements to the police. (Thus, the

trial court made no findings about whether the victim’s statements

to the police were excited utterances, and we have no ruling to

review for an abuse of discretion.) Instead, by redacting the victim’s

statements to the police on the video without requesting a ruling

from the court on the matter, the prosecutor conceded, at least

implicitly, that they were inadmissible.

¶ 31 Bolstering the existence of this concession is the prosecutor’s

use of the opening the door doctrine. As discussed, the prosecutor

argued that Ramirez opened the door to admission of the victim’s

statements to the police on the video by his questioning of the

officer. The opening the door doctrine, however, applies only if the

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challenged evidence is otherwise inadmissible. By relying on this

doctrine, the prosecutor again acknowledged that the victim’s

statements to police were not otherwise admissible under any

theory, including as excited utterances.

¶ 32 Given the concession in the trial court, we decline to entertain

the People’s new argument on appeal regarding the excited

utterance exception. It is one thing for the People to argue for

affirmance on a ground not raised or ruled on below but supported

by the record. It is quite another thing for the People to assert on

appeal a position inconsistent with one they took below. In an

analogous context, our supreme court has admonished the People

that it is not appropriate for them “to walk back their concession[s]”

made before a lower court; a “prosecutor’s ultimate goal is justice,

which is not always synonymous with victory.” Garcia v. People,

2022 CO 6, ¶ 18 n.2; see also People v. Struckmeyer, 2020 CO 76,

¶ 5 (“It is unclear . . . why the People believe that they can concede

[reviewability] of an issue in the court of appeals and then take the

opposite position in this court . . . .”) (citation omitted). Therefore,

we decline to decide whether the excited utterances exception

applies to the victim’s statements to the police.

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¶ 33 Given all this, we conclude that the trial court erred by

admitting the victim’s statements on the unredacted video.

2. The Error Was Not Harmless

¶ 34 Because Ramirez objected to the evidentiary error, we review

for ordinary harmless error. See Davis v. People, 2013 CO 57, ¶ 13.

Under this standard, we reverse if the error, when considered in

light of the entire record of the trial, substantially influenced the

verdict or impaired the fairness of the trial. People v. Stewart, 55

P.3d 107, 124 (Colo. 2002). We conclude that the error warrants

reversal under this standard.

¶ 35 During closing arguments, the prosecutor replayed Exhibit 3

(the unredacted video) for the jury and emphasized its importance.

The prosecutor argued that the victim and Ramirez had different

versions of the events but that the version “told by [the victim] is

the one that is true.” The prosecution reiterated the importance of

the video by telling the jurors that they “got to hear from [the

victim]” even though she did not testify. The prosecution further

pressed the video’s significance by stating that the victim “identifies

the person who attacked her” and that “she explains exactly what

happened.”

18

¶ 36 So the challenged video comprised a significant portion of the

prosecution’s case against Ramirez. The video supplied information

that was not elicited from other witnesses, such as the victim’s

detailed account of the assault. She described being sliced by a

knife and being hit with fists in the face, as well as Ramirez putting

his hands around her throat. She also alleged that Ramirez was

drinking, had an interlock device on his vehicle, and fled on foot.

¶ 37 In short, the evidence of the victim’s statements to the police

was the strongest and most direct evidence of Ramirez’s guilt.

While the other admitted evidence might have been sufficient to

support his convictions even absent the challenged statements, that

is not the question before us. The proper inquiry in determining a

harmless error question is not whether there was sufficient

evidence to support the verdict without the improperly admitted

evidence but, rather, whether the error substantially influenced the

verdict or affected the fairness of the trial proceedings. Yusem v.

People, 210 P.3d 458, 469 (Colo. 2009).

¶ 38 In light of the power of the victim’s statements to the police

directly accusing Ramirez of the crimes and the prosecutor’s

reliance on those statements, we cannot conclude that this evidence

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had no substantial influence on the verdict. We are not persuaded

otherwise by the fact that the jury acquitted Ramirez of first degree

assault. Our role is to decide if the improperly admitted evidence

substantially influenced the verdict convicting Ramirez of second

degree assault. We conclude that it did, inasmuch as the

challenged statements more closely described second degree assault

(allegations of being punched in the face, with resulting teeth loss).

The victim’s references to the use of a knife were less clear.

III. Conclusion

¶ 39 The judgment is reversed, and the case is remanded for a new

trial.

JUDGE PAWAR and JUDGE JOHNSON concur.