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People v. Gonzalez-Quezada.

2023 COA 124. No. 21CA1229. Sixth Amendment—Right to Public Trial—Sufficiency of Evidence—Testimony—Fifth Amendment Rights—CRE 403—CRE 608(b)—Partial Courtroom Closure—Waller Test.

December 28, 2023

Gonzalez-Quezada (Quezada) fired shots at his estranged wife, Nancy, and Marron, with whom she was having an intimate relationship. The incident occurred at about 5 a.m. in the parking lot of a gym where Nancy worked as a personal trainer. Quezada was charged with one count of first-degree murder relating to Marron and a count of reckless endangerment relating to Nancy. The jury trial was held under COVID-19 protocols, and to limit the number of people who were physically present in the courtroom, the trial was also live-streamed on Webex. The court repeatedly reminded Webex observers to mute themselves during the trial, but on the trial’s seventh day, the court disconnected a line participating via Webex because the observer at that phone number repeatedly failed to mute their microphone, and the noise was disrupting the testimony. The jury convicted Quezada of second-degree murder and reckless endangerment, and he was sentenced to 48 years in the custody of the Colorado Department of Corrections.

On appeal, Quezada contended that the prosecution presented insufficient evidence to disprove the heat of passion mitigator. Second-degree murder may be mitigated from a class 2 felony to a class 3 felony if it is committed under the heat of passion. If there is sufficient evidence to support giving an instruction on heat of passion, the prosecution is required to disprove the mitigator beyond a reasonable doubt. Here, the court gave proper jury instructions on the heat of passion, and the jury could have found against Quezada on the heat of passion mitigator based on the facts that Quezada (1) was arguably lying in wait for Nancy and Marron to arrive; (2) knowingly placed himself in a situation where he could discover their relationship, which undermined the suddenness component of the mitigator; (3) had time to reflect before he fired the fatal shot; (4) made a statement to Marron about “messing” with married women, which may have indicated premeditation; and (5) questioned Nancy about whether this is what she wanted, which also may have led the jury to conclude that he was not acting under a heat of passion. Accordingly, sufficient evidence existed to disprove the heat of passion mitigator.

Quezada also argued that the trial court erred by (1) allowing Nancy to testify even though she planned to invoke her Fifth Amendment rights as they related to sexual assault charges pending against her concerning Quezada’s son, and (2) excluding extrinsic evidence that would have identified Quezada’s son as the victim of Nancy’s alleged sexual assault. Quezada maintained that he needed to confront Nancy about the fact that Quezada’s son was the victim of Nancy’s alleged sexual assault, and that by precluding this testimony, the trial court deprived him of the opportunity to establish Nancy’s bias and motive to testify against him. Here, the trial court denied defense counsel’s motion to bar Nancy’s testimony in its entirety on grounds that she could be effectively cross-examined without identifying Quezada’s son as the alleged victim of the sexual assault, and it then prohibited Quezada’s counsel from asking Nancy who the victim of the alleged offense was but allowed counsel to introduce evidence that she had been charged with sexual assault involving incest allegations. Allowing Nancy to testify knowing that she would invoke her right to remain silent concerning the identity of the alleged victim of the assault did not deprive Quezada of his right to confrontation because (1) the alleged victim’s identity could not have impacted his mental state at the time of the shooting, as Quezada was unaware of the alleged assault until after his arrest; and (2) Nancy was a critical witness because she was the only person who could describe certain events surrounding the shooting. Therefore, the trial court did not err by denying defense counsel’s motion to bar Nancy’s testimony in its entirety.

Quezada further contended that the trial court erred by precluding his counsel from asking a detective to tell the jury the identity of Nancy’s alleged sexual assault victim. Here, while the trial court erred by relying on CRE 608(b) to preclude the testimony, Rule 403 precluded the admission of evidence that Nancy had been accused of sexually assaulting Quezada’s son because the prejudicial impact of the proffered identification of Quezada’s son substantially exceeded the de minimis probative value of that evidence. Therefore, the trial court did not abuse its discretion by excluding this evidence.

Quezada also asserted that the trial court deprived him of his right to a public trial by excluding the observer from the Webex live stream of the proceedings. However, the exclusion of a disruptive observer from a Webex electronic broadcast of the trial does not constitute a partial closure of the courtroom for purposes of a defendant’s right to a public trial when the physical courtroom remains open to the public. Further, even if the observer’s exclusion were a partial closure, the trial court made adequate findings to justify a partial closure in accordance with Waller v. Georgia, 467 U.S. 39 (1984).

The judgment was affirmed.

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

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