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People v. Barajas.

2021 COA 98. No. 17CA2332.  Jury Trial—Bifurcation—Colorado Uniform Jury Selection Service Act—Right to Be Present at Trial—Right to Confront Witnesses.

July 22, 2021

Police executed a warrant to search for drugs at a house where defendant was believed to be staying. The officers found defendant inside the house with a small bag of suspected methamphetamine in his front pocket. Officers also found several methamphetamine pipes and a loaded handgun. Defendant was arrested and charged with one count of possession of a controlled substance and two counts of possession of a weapon by a previous offender (POWPO). Before trial, defendant moved for separate trials on the POWPO and drug possession counts. The trial court denied defendant’s request for separate trials but bifurcated the charges to have a jury first hear the drug charge and then hear the weapons charges. The same jury heard both phases and found defendant not guilty of the drug charge and guilty of the POWPO charges.

On appeal, defendant contended that the trial court erred by bifurcating the trial into two parts to one jury instead of severing the charges into two trials with separate juries. A trial court has latitude to determine whether bifurcation or severance is appropriate, so the Court of Appeals reviewed the decision for abuse of discretion. It determined that the trial court properly exercised its discretion in bifurcating defendant’s trial.

Defendant also argued that the trial court’s refusal to sever the counts violated the Colorado Uniform Jury Selection and Service Act (UJSSA). He maintained that because the jurors who heard the POWPO charge had just reached a verdict on the drug possession charge, their continued service violated the UJSSA. Here, the court bifurcated the trial rather than holding separate trials, so the jurors who deliberated during the first phase of the trial did not participate in a second trial in violation of CRS § 13-71-120.

Defendant also contended that the trial court violated his right to be present at trial by beginning voir dire without him. While it was error for the court to begin voir dire without defendant, his absence did not contribute to the verdict. Therefore, any error was harmless beyond a reasonable doubt.

Defendant also argued that the trial court violated his right to confront witnesses by allowing a laboratory analyst who did not perform, observe, or supervise each stage of the DNA testing process to testify. Here, the analyst testified to and could be cross-examined on the conclusions she independently reached after evaluating data developed by technicians in her own lab, using techniques that she was familiar with and could verify had been followed. Accordingly, defendant’s right to confront witnesses was not violated.

Lastly, defendant contended that the trial court violated his right to confrontation by permitting two prosecution witnesses to testify that he was known to carry a gun at all times, based on information from a confidential informant. However, the prosecution offered the statements to justify the aggressive tactics the police used in executing the search warrant, not to prove the truth of the matter asserted. Accordingly, the statements were not hearsay and did not implicate defendant’s confrontation rights.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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