Opinion
21CA1739
05-23-2024
The People of the State of Colorado, Plaintiff-Appellee, v. Ryan Neal Curey, Defendant-Appellant.
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Weld County District Court No. 18CR729 Honorable Vincente G. Vigil, Judge
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Román, C.J., and Graham [*] , J., concur
OPINION
DAVIDSON, JUDGE [*]
¶ 1 Defendant, Ryan Neal Curey, appeals the judgment of conviction entered on jury verdicts finding him guilty of extraction of marijuana concentrate and possession of a controlled substance (methamphetamine). We affirm.
I. Background
¶ 2 Police learned of a Facebook Live video of Curey demonstrating how to extract marijuana concentrate from marijuana plants using a process involving butane. Officers executed a search warrant at Curey's apartment and found the types of items Curey used in the video, including butane canisters, a blasting tube, and marijuana. The officers also found methamphetamine in Curey's pocket and elsewhere in the apartment. However, the officers did not find any marijuana concentrate.
¶ 3 Among other witnesses at trial, the prosecution and defense each offered an expert witness who provided competing opinions about whether Curey made marijuana concentrate in the video or instead used some other type of plant material that was not marijuana. The prosecution's expert was a police officer; the defense expert was not.
¶ 4 The defense at trial was that the plant material shown in the video was not marijuana and that Curey was only simulating the process for making marijuana concentrate. He also claimed that the methamphetamine belonged to someone else.
¶ 5 Following the jury's guilty verdicts, the trial court sentenced Curry to three years on probation.
II. Defense-Tendered Instruction Regarding the Credibility of Witnesses Who Are Police Officers
¶ 6 Curey contends that the trial court erred by not giving the jury a specific instruction regarding the credibility of witnesses who are police officers. We discern no abuse of discretion.
A. Additional Background
¶ 7 The trial court gave the jury the following model criminal jury instruction regarding the credibility of witnesses:
You are the sole judges of the credibility of each witness and the weight to be given to the witness's testimony. You should carefully consider all of the testimony given and the circumstances under which each witness has testified.
For each witness, consider that person's knowledge, motive, state of mind, demeanor, and manner while testifying. Consider the witness's ability to observe, the strength of that person's memory, and how that person
obtained his or her knowledge. Consider any relationship the witness may have to either side of the case, and how each witness might be affected by the verdict. Consider how the testimony of the witness is supported or contradicted by other evidence in the case. You should consider all facts and circumstances shown by the evidence when you evaluate each witness's testimony.
You may believe all of the testimony of a witness, part of it, or none of it.COLJI-Crim. E:05 (2023). The court also gave the jury the following model criminal jury instruction regarding expert witnesses:
You are not bound by the testimony of [a] witness[es] who [has] [have] testified as [an] expert[s]; the credibility of an expert's testimony is to be considered as that of any other witness. You may believe all of an expert witness's testimony, part of it, or none of it.
The weight you give the testimony is entirely your decision.COLJI-Crim. E:06 (2023).
¶ 8 However, Curey requested that the trial court add the following two sentences to its instruction regarding the credibility of witnesses: "You must not give more credibility to a law enforcement officer who testifies simply because of their status as a law enforcement officer. You must evaluate a law enforcement officer's credibility in the same manner as you would a lay witness." Curey argued that the added language was warranted because, among other things, (1) the prosecution's expert witness was a police officer but the defense expert was not, and (2) the issue of witness credibility was discussed at length during voir dire.
¶ 9 The trial court denied the request, concluding that the model jury instructions regarding the credibility of witnesses and expert witnesses would adequately cover the more specific issue of the credibility of law enforcement witnesses.
B. Standard of Review
¶ 10 We review jury instructions de novo to determine whether they accurately informed the jury of the governing law. McDonald v. People, 2021 CO 64, ¶ 54. However, we review a trial court's decision whether to give a particular jury instruction for an abuse of discretion. Id. A court abuses that discretion only when its ruling is manifestly arbitrary, unreasonable, or unfair. Id.
¶ 11 The model instructions regarding the credibility of witnesses and expert witnesses accurately informed the jury of the governing law on those issues. The trial court's decision not to add the defense-tendered language specifically applying those principles in the context of law enforcement witnesses was a discretionary one, and we review that decision for an abuse of discretion.
C. Analysis
¶ 12 On appeal, Curey repeats his argument that the defense-tendered instruction was warranted because the prosecution's expert was a police officer but the defense expert was not.
¶ 13 However, as the People point out in their answer brief, our supreme court has concluded that "special credibility instructions normally are to be avoided because they unduly focus the attention of jurors upon a particular witness." People v. Rubanowitz, 688 P.2d 231, 244 (Colo. 1984). "A general credibility instruction . . . adequately informs the jury of its role concerning the evaluation of testimony, including evaluation of the credibility of any particular witness." Id.; see also People v. Estorga, 200 Colo. 78, 83, 612 P.2d 520, 524-25 (1980) ("A general instruction on witness credibility was given which sufficiently listed factors for the jury to consider in weighing all evidence. It was within the trial court's discretion to refuse a specific instruction which might have unnecessarily emphasized particular evidence.").
¶ 14 A division of this court in People v. McCants, 2021 COA 138, applied that rule in the context of a specialized instruction pertaining to law enforcement. That case involved a defense-tendered instruction that police officer identification testimony should be evaluated under the same standard as lay witness testimony. Id. at ¶ 41. Relying on Rubanowitz, among other cases, the division held that "[b]ecause the jury was given a proper general credibility instruction adequately explaining the law, the trial court didn't abuse its discretion by declining to give an additional instruction regarding the credibility of a specific witness." Id. at ¶ 46.
¶ 15 Although the People relied on Rubanowitz and Estorga in their answer brief, Curey did not respond to that argument in his reply brief. Following Rubanowitz, Estorga, and McCants, we conclude that the trial court did not abuse its discretion by declining to give the jury the defense-tendered instruction at issue.
¶ 16 We are unpersuaded by Curey's argument that the defense-tendered instruction was appropriate because during voir dire the concept of witness credibility was discussed at length with prospective jurors. Curey has not cited any authority supporting the proposition that the type of questions posed during voir dire should influence the ultimate instructions of law that a court gives the empaneled jury. The purpose of voir dire is to determine which prospective jurors can decide the case fairly and impartially. If a prospective juror expresses the belief that police officers are more credible than other witnesses, the court may dismiss that prospective juror for cause. But there is no indication in the record here that any of the empaneled jurors held that belief.
III. Screening Testimony About the Search Warrant
¶ 17 Curey also contends that the trial court plainly erred by admitting screening testimony about a search warrant. His contention is based on the general rule that when probable cause to arrest or search is not at issue, it is improper to present evidence to the jury about obtaining an arrest or search warrant or having probable cause for an arrest or search. People v. Salazar, 2023 COA 102, ¶ 39; People v. Mullins, 104 P.3d 299, 301 (Colo.App. 2004).
A. Further Background
¶ 18 In support of his contention, Curey's opening brief cites only the following trial testimony of the lead officer on the case:
Q. Now, as the author [of the search warrant], were you the lead case agent at this time?
A. I was.
Q. And what is the role of a lead case agent when it comes to the execution of a search warrant?
A. The role is we do a lot of the documentation.... I wrote the search warrant. I made sure we had the proper probable cause to make sure that we could write the search warrant.
That is the only instance during the lead officer's testimony that he mentioned having probable cause for the search warrant. However, as Curey emphasizes in his reply brief, the mere fact that the search was conducted pursuant to the warrant was mentioned numerous times during the trial.
B. Standard of Review
¶ 19 We review a trial court's evidentiary rulings for an abuse of discretion. People v. Owens, 2024 CO 10, ¶ 105. However, Curey did not object to the allegedly improper testimony, so we review for plain error. People v. Penn, 2016 CO 32, ¶ 28. Plain error is obvious and substantial error. Id. We reverse under plain error review only if the error "so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction." Id. (quoting Hagos v. People, 2012 CO 63, ¶ 14).
C. Analysis
¶ 20 As an initial matter, we question whether it was improper for officers to mention that the search was conducted pursuant to a warrant because that simply clarified that the officers were legally justified in entering Curey's apartment. See People v. Ornelas, 937 P.2d 867, 872 (Colo.App. 1996) ("[T]he statement that the police had obtained a [search] warrant merely explains the authorization for their presence [in the defendant's house]."); see also Penn, ¶ 32 ("[I]n some circumstances, police officers may testify about the reasons they took certain investigative steps, even where this testimony touches upon prohibited subjects.").
¶ 21 Rather, the more problematic testimony in this area occurs when an officer testifies regarding the process of applying for and obtaining an arrest or search warrant, including a judge's determination that probable cause exists. See People v. Mapps, 231 P.3d 5, 12 (Colo.App. 2009); Mullins, 104 P.3d at 301. But here, the lead officer didn't testify in detail regarding the process for obtaining a search warrant with a judge's approval. Nevertheless, we will assume that it was improper for the police officer to mention his belief that the warrant was supported by probable cause.
¶ 22 Having said that, we conclude that any error in this regard did not so undermine the fundamental fairness of the trial so as to cast serious doubt on the reliability of the judgment of conviction. See Penn, ¶ 28.
¶ 23 The lead officer's brief mention of probable cause for the search, along with the officers merely mentioning that the search was conducted pursuant to a warrant, makes this case like others in which divisions of this court found no plain error under similar circumstances. For example, in Salazar, two officers briefly mentioned during their testimony that they had probable cause to arrest the defendant. 2023 COA 102, ¶ 37. The division found no plain error because, among other reasons, the testimony "was brief and lacked detail" and the witnesses "did not describe how officers obtain probable cause, what that means, or whether a judge made a probable cause finding." Id. at ¶ 42.
¶ 24 Similarly, in Mapps, the division found no plain error because "the testimony about the search warrant was minimal, providing little detail about the extensive process of applying for and obtaining a search warrant." 231 P.3d at 12.
¶ 25 Divisions have even found no plain error where an officer makes a fleeting reference to the fact that a judicial officer approved a warrant. See People v. Renfro, 117 P.3d 43, 47-48 (Colo.App. 2004); Ornelas, 937 P.2d at 872. But the lead officer here didn't make any such statement.
¶ 26 Further, the divisions in Salazar and Mapps also based their holdings on the fact that the prosecutors in those cases did not mention the allegedly improper testimony during their closing arguments. See Salazar, ¶ 42; Mapps, 231 P.3d at 12. The same is true here.
¶ 27 We conclude that the lead officer's brief testimony about having probable cause, along with the officers' testimony that the search was conducted pursuant to the warrant, did not undermine the fundamental fairness of the trial.
IV. Disposition
¶ 28 The judgment is affirmed.
CHIEF JUDGE ROMAN and JUDGE GRAHAM concur.
[*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2023.