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People v. Cross.

2023 COA 24. No. 20CA0251. Sentencing—Motion for Continuance—Presentence Report—CRE 403—CRE 404(b)—Hearsay—CRE 803(3).

March 16, 2023

Cross was charged with first degree murder after shooting the victim, his long-term romantic partner, in the head. Cross was convicted of second degree murder with a crime of violence sentence enhancer. At the sentencing hearing, defense counsel requested a continuance because the presentence report lacked information about Cross’s work history, family history, and character. The court denied the request. The defense then made another continuance request on grounds that the probation department had not provided the presentence report to defense counsel at least 72 hours before the sentencing hearing, in violation of CRS § 16-11-102(1)(a)(IV). The court denied this request and sentenced Cross to 40 years in the custody of the Department of Corrections.

On appeal, Cross contended that the trial court abused its discretion by admitting evidence of his prior acts of domestic violence against the victim. As relevant here, CRE 404(b) provides that other crime evidence is admissible to prove motive unless its probative value is substantially outweighed by the danger of unfair prejudice under CRE 403. Here, the court instructed the jury, both when the witnesses provided their testimony and again at the trial’s conclusion, that it could only consider the testimony for the limited purpose of determining Cross’s motive. At those same points during the trial, the court told the jury it could also consider a witness’s testimony in assessing Cross’s defense that the shooting was accidental. Further, the evidence showed that Cross’s domestic violence acts against the victim were ongoing, so although the evidence was prejudicial, it was not unfairly so. Accordingly, the trial court did not err by determining that the prior act evidence was highly probative of the relationship dynamic between Cross and the victim and their consistent relationship volatility, and the court did not abuse its discretion by admitting the prior act evidence.

Cross also argued that the court erred by admitting testimony from the victim’s brother that the victim feared Cross would overhear her telephone calls with her brother and react violently thereafter. Cross contended it was inadmissible hearsay because it concerned information that the victim’s brother had obtained through his discussions with the victim and not through his own observations. However, the testimony was admissible under the CRE 803(3) state-of-mind hearsay exception because it reflected the victim’s statements that, at the time, she feared Cross’s reaction if he learned about her telephone calls with her brother. Therefore, the court did not err by admitting it.

Cross also argued that the trial court abused its discretion by denying defense counsel’s request to continue the sentencing hearing even though the probation department did not timely provide defense counsel with the presentence report. Probation officers are required to conduct an investigation and provide the court with a written report before imposition of a sentence. CRS § 16-11-102(1)(a)(IV) provides that the parties must also receive this information no less than 72 hours before the sentencing hearing. The statute does not list exceptions to the 72-hour requirement, does not say whether a court has discretion to shorten that period, and does not specify the remedy if the probation department fails to timely provide defense counsel with a copy of the presentence report. The court of appeals determined that when the probation department fails to provide defense counsel with the presentence report within the statutory timeframe, and the defendant did not otherwise receive the report by that time, the defendant is entitled to a continuance of the sentencing hearing. Here, it is undisputed that the probation department failed to provide the presentence report to defense counsel within the statutory deadline, and defense counsel advised the court at the sentencing hearing that he was unaware of the contents of the presentence report until he obtained a copy of it after the statutory deadline. Nevertheless, the court denied the continuance request and proceeded with Cross’s sentencing hearing. Therefore, the court reversibly erred.

The judgment was affirmed as to Cross’s convictions challenges. The judgment was reversed as to Cross’s sentence and the case was remanded with directions to conduct further sentencing proceedings.

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

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