People v. Gray.
2025 COA 23. No. 23CA0085. Sixth Amendment—Confrontation Clause—Evidence—Witnesses—Cross-Examination—Probationary Status—Self-Defense Affirmative Defense.
February 27, 2025
Gray and Canciamilla, who were dating, had an argument in Gray’s home after they had been drinking together. Gray repeatedly struck Canciamilla and choked him (the incident). Epperson, his wife Jones, and their children also lived in the house and were present during the incident. Jones called her friend Kretzmeier and asked her to get the children out of the house until the situation resolved. Kretzmeier arrived at the house and said she had to use physical force to keep Gray away from Canciamilla. Kretzmeier testified that it became clear to her that Gray was not going to de-escalate, so she told Jones to call police. Gray’s theory of defense at trial was that she had acted in self-defense after Canciamilla shoved her down the stairs by the throat. Responding Officer Steingart’s testimony regarding Gray’s statements to her that this occurred was the only trial evidence supporting the defense’s argument. Gray was convicted of second degree assault and third degree assault.
On appeal, Gray contended that the prosecution did not disprove her affirmative defense of self-defense beyond a reasonable doubt, so there was insufficient evidence to support her convictions. CRS § 18-1-704(1) governs the self-defense affirmative defense and provides that a person may use physical force upon another person to defend from what a person “reasonably believes to be the use or imminent use of unlawful physical force by that other person.” And a degree of force reasonably believed to be necessary for that purpose may be used. Thus, the prosecution could have defeated Gray’s affirmative defense by proving beyond a reasonable doubt that Gray (1) did not reasonably believe that Canciamilla used or would imminently use unlawful physical force or (2) did not use a degree of force that she reasonably believed to be necessary to defend herself. Here, the evidence showed that Kretzmeier had to use physical force to keep Gray away from Canciamilla and that Kretzmeier did not see any injuries on Gray. The evidence supported a finding that Canciamilla did not push Gray down the basement stairs and that Canciamilla did not use or indicate that he would use physical force against her. And the unrebutted evidence showed that Gray repeatedly struck Canciamilla and choked him until he gagged, and Canciamilla passively allowed Gray to hit him over and over. On these facts, the jury could have reasonably found that the prosecution proved beyond a reasonable doubt that Gray (1) did not reasonably believe Canciamilla was using or would imminently use unlawful physical force and (2) used an unreasonable amount of physical force against Canciamilla. Therefore, when viewed in the light most favorable to the prosecution, the evidence was substantial and sufficient to support a reasonable conclusion that Gray did not act in self-defense.
Gray also contended that the trial court violated her constitutional right to confront her accusers by not allowing her to cross-examine Canciamilla about his probationary status at the time he spoke with police officers regarding the incident, even though Canciamilla was no longer on probation when the trial occurred. Gray argued for the court of appeals to extend Margerum v. People, 454 P.3d 236 (Colo. 2019), to situations where the witness was on probation when the witness provided law enforcement officers with a statement regarding the underlying incident but is no longer on probation at the time of trial. In Margerum, the court held that criminal defense counsel must be allowed to cross‑examine a prosecution’s witness about the witness’s probationary status when the witness is on probation in the same sovereign as the prosecution. Margerum is based on concerns that such a witness could be motivated to favor the prosecution in their testimony in hopes of obtaining a benefit from the prosecution, such as dismissal of a criminal charge, leniency regarding pending charges, or favorable treatment while on probation. The court of appeals concluded that such concerns were not implicated in this case because the record does not suggest that Canciamilla considered his probationary status when he spoke with the officers, and it does not show how soon after the incident Canciamilla satisfied the terms of his probation. And even if Gray had a constitutional right to cross-examine Canciamilla regarding his probationary status, defense counsel did not show that prosecutors were authorized to ask the court to revoke his probation after Canciamilla’s statements to officers. Further, disclosing Canciamilla’s former probationary status to the jury would have risked that the jury could improperly hold the misdemeanor conviction against him in weighing his credibility. The court declined to apply Margerum to witnesses who were on probation when they provided law enforcement officers with information regarding the offense for which the defendant was charged but who are no longer on probation when the trial occurs. Therefore, the trial court did not err by not allowing defense counsel to cross-examine Canciamilla regarding his probationary status when he spoke to officers about the incident.
The judgment was affirmed.