Peo v. Lucero

18CA1454 Peo v Lucero 10-21-2021 COLORADO COURT OF APPEALS Court of Appeals No. 18CA1454 Alamosa County District Court No. 17CR442 Honorable Michael A. Gonzales, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Danny Norman Lucero, Defendant-Appellant. JUDGMENT AFFIRMED Division I Opinion by JUDGE DUNN Dailey and Kuhn, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 21, 2021 Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy Stat e Public Defender, Denver, Colorado, for Defendant-Appellant 1 ¶ 1 Defendant, Danny Norman Lucer o, appeals his judgment of conviction after a jury found him guil ty of second degree assault. We affirm. I. Background ¶ 2 In September 2017, Lucero went to the Alamosa Police Department for an interview. At t he end of the interview, Corporal Jamie Coulson and Officer John V asquez handcuffed Lucero and led him through the station and out the back door to the parking lot for transport to jail. It’s undisput ed that Lucero had a bloody nose (and some abrasions) by the time the gr oup reached the police car, and that Officer Vasquez ended up w ith blood spatter on his face. But the parties disputed how thos e things happened. ¶ 3 According to the officers, as they escorted Lucero through the station, he became increasingly agi tated and swore at Officer Vasquez. Then, while still handc uffed, Lucero squatted down, flexed his arms, and stiffened his hands. This movement caught Officer Vasquez’s wrist in the han dcuff chain. And it’s undisput ed Officer Vasquez’s wrist was injur ed; the jury saw a photograph of the injury. To release Officer Vasq uez’s wrist, the officers testified that they lifted Lucero and “put hi m up against” a locker. 2 ¶ 4 Once Officer Vasquez’s wrist was r eleased, the officers escorted Lucero out of the building to Corporal Coulson’s polic e car (over Lucero’s continued resistanc e). The officers explained that they then opened the car door, turn ed Lucero around so that he was facing them, and sat him dow n. As Lucero was scooting to t he back of the seat, both officers said that he spat at Officer Vasquez, splattering blood and saliva on th e officer’s face. ¶ 5 At trial, Lucero’s counsel offered a different version of events. Defense counsel posited that, in r esponse to Lucero’s aggressive tone and language, the officers bec ame physical and slammed Lucero into a wall, causing him t o bleed. As to the blood on Offic er Vasquez, defense counsel argued t hat Lucero sneezed, and, becaus e he had a bloody nose, the sneeze r esulted in the blood spatter on Officer Vasquez’s face. Defense c ounsel contended that the offic ers, realizing they had injured Lucero a nd that there would be consequences, “used [the blood on Officer Vasquez] as their way out” — to make it “look like” Luc ero was the aggressor. ¶ 6 In addition to other charges not r elevant here, the People charged Lucero with second degree assault for spitting on Officer Vasquez. The jury found Lucero guilt y but determined that the 3 assault occurred while Lucero was “acting upon a provoked and sudden heat of passion” (reducing the conviction from a class 4 felony to a class 6 felony). ¶ 7 Lucero appeals his conviction, ar guing that (1) insufficient evidence supports it; (2) the failur e to preserve surveillance video showing the parking lot violated hi s due process rights; (3) the tr ial court erred by failing to disclose an y records from Officer Vasquez’s internal affairs file; (4) the trial co urt abused its discretion by allowing Officer Vasquez to give ex pert testimony in the guise of lay testimony; and (5) the trial court erred by refusing to instruct the jury on the affirmative defense of s elf-defense. ¶ 8 We perceive no reversible error and therefore affirm the judgment of conviction. II. Second Degree Assault ¶ 9 The prosecution charged Lucero wi th second degree assault under section 18-3-203(1)(f.5)( I), C.R.S. 2020. A person is guilty under that statute if, [w]hile lawfully confined in a det ention facility . . . a person with intent to infect, injure, harm, harass, annoy, threaten, or alar m a person in a detention facility whom the actor knows or reasonably should know to be an 4 employee of a detention facility , causes such employee to come into contact wit h blood . . . [or] saliva . . . including but not lim ited to throwing, tossing, or expelling such fluid or material. (Emphasis added.) ¶ 10 For purposes of this statute, a d etention facility includes “any building, structure, enclosure, v ehicle, institution, or place . . . where persons are or may be lawf ully held in custody or confinement.” § 18-3-203(1)(f.5)( III)(A). Lawfully confined, however, is not defined. ¶ 11 Lucero contends that the prosecuti on presented insufficient evidence to prove either (1) that h e was “lawfully confined in a detention facility” at the time of t he assault or (2) that Officer Vasquez was an “employee of a d etention facility.” ¶ 12 We review de novo whether suffici ent evidence was presented to sustain a conviction. People v. Perez , 2016 CO 12, ¶ 8. In doing so, we must determine whether the evidence, when viewed in th e light most favorable to the prosecu tion, was substantial and sufficient to support a conclusion by a rational jury that the defendant was guilty beyond a reas onable doubt. Id. 5 ¶ 13 When a sufficiency claim depends on our interpretation of a statute, we also review that issue de novo. McCoy v. People , 2019 CO 44, ¶ 37. Our primary task in construing a statute is to ascertain and give effect to the G eneral Assembly’s intent. Id. To do that, we begin with the statut e’s plain language. People v. Huckabay , 2020 CO 42, ¶ 13 . If the language is clear and unambiguous, we apply it as writ ten, construing the words and phrases according to the rules of gr ammar and common usage. See id. ; accord McCoy , ¶ 37. A. Lawfully Confined ¶ 14 Lucero doesn’t dispute that he was in custody when he spat on Officer Vasquez. But he argu es that “lawfully confined” means something different than “in custo dy.” Additionally, because “he was in the process of being plac ed in” the police car when he assaulted Officer Vasquez, Lucero contends he was not confined “in a detention facility” when the assa ult occurred. ¶ 15 We start with Lucero’s argument t hat confinement and custody are different for purposes of subsection ( f.5) . To get ther e, Lucero relies on People v. Oli nger , 39 Colo. App. 491 , 566 P.2d 13 67 (1977). That case also involved a d efendant who spat on a police 6 officer while in (or near) a police car and was convicted of second degree assault. Construing an old er, different version of the second degree assault statute, Olinger conclu ded that “lawfully confined” had a narrower meaning than “in custody.” Id. at 493, 566 P.2d at 1368. ¶ 16 But Olinger is not helpful for a cou ple of reasons. First, it’s unclear exactly where the defenda nt in Olinger was when he assaulted the officer. The case sug gests the defendant was not in the police vehicle and that, instead, the assault occurred outside the police car; thus, the defendant was not confined. See i d. at 492, 566 P.2d at 1367-68 (describing as sault occurring as the defendant “was taken out of the police car”). But, in any event, the second degree assault statute has since b een amended, and two divisions of this court have construed the cu rrent statute more broadly to include confined individuals who ar e “under arrest.” See People v. Luna , 2013 COA 67 , ¶¶ 29, 31; s ee also People v. Miller , 97 P.3d 171, 173 (Colo. App. 2003). ¶ 17 Luna is particularly instructive. There, the jury convicted the defendant of second degree assault for spitting on a police officer while the defendant was seated in the back of a police car. On 7 appeal, the Luna division determin ed that any ambiguity in the term “lawfully confined” was clarif ied by the broad statutory definitions of “detention facility” an d “employee of a detention facility.” Luna , ¶¶ 29, 31. Consid ering these two definitions and the legislative history of subsection (f.5), the Luna division concluded that a defendant und er arrest and in a patrol vehicle is “lawfully confined” for purposes of subsection (f.5). Id. at ¶ 32; s ee also Miller , 97 P.3d at 174 (quoting legislators’ statements that subsection (f.5) was intended to ap ply “not just” to prisoners but also to those “arrested” and “in th e back of” a police car) (citation omitted). Because we are persua ded Luna correctly interpreted subsection (f.5), we decline Lucero ’s request that we interpret “lawfully confined” to exclude som eone who is “in custody” and confined in a police vehicle. ¶ 18 Lucero next tries a different approa ch and says that, because he was “in the process” of being plac ed in the police car — and, in his view, not fully in the car when he spat on Officer Vasquez — th e evidence was insufficient to show he was “in a detention facility. ” But Corporal Coulson testified that Lucero was handcuffed, in the backseat, and “scooting his butt into the back of the seat” when the 8 assault occurred. And both offic ers testified the parking lot was a “secured facility” surrounded by a w all and fence and not accessible by the public. From this evidence, a reasonable juror could conclude that Lucero was lawfully confined in the police car (or in the enclosed, secure parking str ucture) when the assault occurred. See Luna , ¶ 32; see also § 18-3-2 03(1)(f.5)(III)(A) (defining a detention facility broadly to incl ude a “vehicle” and any “structure, enclosure, . . . or place”). We th erefore conclude that the prosecution presented sufficient evidence that Lucero was lawfully confined in a detention facility w hen he assaulted Officer Vasquez. B. Employee of a Detention Facility ¶ 19 We likewise reject Lucero’s argum ent that the People provided insufficient evidence that Officer V asquez was an employee of a detention facility. ¶ 20 An “employee of a detention facility ” includes employees of the department of cor rections, employees of any agency or person operating a detention facility, law enforcement personnel, and any other persons who are pr esent in or in the vicinity of a detention facility and are performing services for a detention facility. § 18-3-203(1)(f.5)(III)(B). 9 ¶ 21 Although Lucero agrees Officer Va squez qualifies as law enforcement personnel, he conten ds that “law enforcement personnel” is limited by the next cl ause: “who are present in or in the vicinity of a detention facility and . . . performing services for a detention facility.” Thus, accordin g to Lucero, law enforcement personnel must be at a detention f acility or nearby and performing services for the facility to qualify as an “employee of a detention facility.” ¶ 22 Though we doubt that Lucero’s int erpretation is correct, see Luna , ¶ 31 (noting that law enforc ement personnel are employees of a detention facility for the purpos es of the second assault statute), even if we accept his interpretation , the prosecution presented sufficient evidence for the jury to f ind that Officer Vasquez qualified as an “employee of a detention faci lity.” Officer Vasquez testified that he was employed by the Alam osa Police Department and was assisting Corporal Coulson with placing Lucero in the police car (a detention facility under the secon d degree assault statute) for transport to jail (also a detention f acility). From this, a reasonabl e jury could conclude that, while h elping put Lucero in the police car, Officer Vasquez was “present in or in the vicinity of a detention 10 facility and . . . performing servic es for a detention facility.” § 18-3- 203(1)(f.5)(III)(B). ¶ 23 And although Lucero points out t hat his actions also fit under a different subsection of the second degree assault statute, section 18-3-203(1)(h), that doesn’t chang e anything. After all, the prosecution has discretion to det ermine what charges to file when a defendant’s conduct violates mor e than one statute. § 18-1-408(7), C.R.S. 2020. Here it exercised that discretion by charging Lucero under subsection (f.5). ¶ 24 We thus conclude that sufficient evidence supports Lucero’s conviction for second degree assau lt. III. Surveillance Video ¶ 25 Lucero next contends that the c ourt erred by denying his motion to dismiss the second degr ee assault charge as a sanction for the failure to preserve video s urveillance footage. We are unpersuaded. A. Background ¶ 26 At the preliminary hearing, Offic er Vasquez testified that, in addition to a camera in the intervi ew room, there were cameras in the police parking lot. When ask ed if he had obtained the footag e 11 from the parking lot, Officer Vasq uez said he hadn’t because it was dark and he didn’t think the video “ was going to show anything. ” But he said the footage was saved. ¶ 27 However, when Lucero filed a subp oena seeking the video footage from the parking lot (about four months after the preliminary hearing), he learned it had been automatically purg ed. Lucero then moved to dismiss th e second degree assault charg e as a sanction for the failure to pr eserve the footage, which he asserted “would have been exculpatory.” 1 ¶ 28 At the hearing on Lucero’s motion, the Alamosa police chief confirmed there were “two camera s in the parking area,” but, by t he time he received the subpoena seek ing the footage, no videos befor e 2018 remained. When asked about this, the chief explained that the surveillance system automatic ally purged videos after about a month and a half. He also testifi ed that, although the outside cameras “may have” captured “a smal l piece” of what happened, it was unlikely the cameras would’ve captured the relevant 1 Lucero also contended that the pr osecution’s failure to produce the video footage violated its disclosur e obligations. The trial court rejected this argument, and Lucero doesn’t re-raise it on appeal. 12 movements based on the location of the outside cameras and his understanding of where the police car was parked. ¶ 29 The trial court denied the motion, finding that Lucero hadn’t established the video surveillance had exculpatory value or that the State acted in bad faith in purging the video. B. Analysis ¶ 30 To establish a due process violati on for failure to preserve exculpatory evidence, the defendan t must demonstrate that (1) state action destroyed the evidenc e; (2) the evidence had exculpatory value that was apparent before the state destroyed it; and (3) the defendant could not o btain comparable evidence by other reasonably available means. People v. Braunthal , 31 P.3d 167, 173 (Colo. 2001). ¶ 31 If the evidence was not apparently exculpatory before it was destroyed but was only “potentially useful,” the defendant must show that the state acted in bad fa ith when it destroyed the evidence to obtain relief. See Ari zona v. Youngblood , 488 U.S. 51, 58 (1988); People v. Abdu , 215 P.3d 1265, 1270 (Colo. App. 2009). ¶ 32 Here, the evidence doesn’t show t hat the surveillance footage contained apparently exculpatory value before it was purged. At 13 most, the evidence shows that the cameras “may have” captured a “small piece” of the events, but, bas ed on the locations of the outdoor cameras and the police c ar, it’s unlikely the cameras “would have captured any of the m ovements.” Without any evidence that the outside cameras captured the interaction between Lucero and the officers, or what t he footage would have shown, Lucero wasn’t able to demonstrat e that the footage had exculpatory value that was apparent before it was purged. See Abdu , 215 P.3 d at 1270; see also Braunthal , 31 P.3d at 174-75 (the burden is on the defendant to establish that evi dence had apparent exculpatory value when it was destroyed). Ev en assuming — as Lucero contends — that the missing foota ge was potentially useful to his defense, he didn’t establish that the police department acted in ba d faith. Youngblood , 488 U.S. at 58 (concluding that the destruction of potentially useful evidence — t hat is, not apparently material an d exculpatory evidence — constitut es a due process violation only when it’s done in bad faith); a ccord Abdu , 215 P.3d at 1270 . Th e evidence showed only that the surv eillance footage was automatically purged as part of t he system’s routine functioning. See Abdu , 215 P.3d at 1270 (Th ere was no bad faith where 14 videotape was destroyed “automati cally and not through any deliberate decision to deprive def endant of evidence.”). ¶ 33 Officer Vasquez’s testimony that the video was saved as of the preliminary hearing date doesn’t change the fact that the footage was purged automatically. No evi dence suggests the police deliberately destroyed the footage. See Illinois v. Fisher , 540 U.S. 544, 548 (2004) (finding no due pro cess violation where potentially useful evidence was destroyed in nor mal course while a discovery request was pending because ther e was no evidence of bad faith). And even if the failure to save th e surveillance video was negligent, the negligent destruction of pot entially useful evidence doesn’t violate due process. Youngblood , 488 U.S. at 58 ; see also Fis her , 540 U.S. at 548 . ¶ 34 For these reasons, we see no due p rocess violation. IV. Officer Vasquez’s Internal Affair s File ¶ 35 Before trial, Lucero asked the trial court to “order the release and production” of Officer Vasqu ez’s internal affairs and personnel file. Lucero specifically sought, among other things, any excessiv e use of force complaints and record s related to dishonesty and untruthfulness. 15 ¶ 36 After conducting an in camera r eview of Officer Vasquez’s file, the trial court denied the request, finding “none of the documents” were relevant to the case. Lucero now asks us to review Officer Vasquez’s file to determine whether the court abused its discretion by denying the motion. See Peopl e v. West , 2019 COA 131, ¶ 31 . ¶ 37 Based on our independent and car eful review of Officer Vasquez’s internal affairs file, w e agree that the file contains nothing relevant to Lucero’s case. We therefore conclude that th e trial court didn’t abuse its discr etion by denying Lucero’s request. V. Lay Opinion Testimony ¶ 38 Next, Lucero contends that the tr ial court erred by allowing Officer Vasquez to offer expert opi nion in the guise of lay testimony. We perceive no reversible error. ¶ 39 We review a trial court’s decision to admit lay opinion testimony for an abuse of discretio n. Venalonzo v. People , 2017 CO 9, ¶ 24. Where, as here, a defenda nt objected to the challenged testimony, we review for harmless error and will reverse only if an error substantially influenced the v erdict or affected the fairness of the trial. See Hagos v. People , 2012 CO 63 , ¶ 12. 16 ¶ 40 Though police officers may testify as lay witnesses “based on their perceptions and experiences, ” an officer’s testimony crosses the line from lay to expert opinion when it is based on an officer’s specialized skills or training. People v. Stewart , 55 P.3d 107, 123 (Colo. 2002); see also People v. Vere n , 140 P.3d 131, 137 (Colo. App. 2005). ¶ 41 Officer Vasquez testified at trial about what happened the day Lucero assaulted him, describing his interactions with, and perceptions of, Lucero. Officer Va squez also outlined his extensive experience and training, including his training as a use of force instructor. And referring to his use of force training, Officer Vasquez described aspects of Lucer o’s body language and actions that he believed indicated Lucero was going to attack. He then described Lucero’s actions in r eference to “an OODA loop” — a t erm from his training that describes the cy cle that the brain goes through “when you are going to ma ke an action.” And he explained how he engaged Lucero in conver sation to essentially break 17 Lucero’s concentration. 2 The court allowed this testimony over defense counsel’s objection that it was improper opinion testimony. ¶ 42 Even if we assume that some asp ects of Officer Vasquez’s testimony crossed into the realm o f expert evidence, we conclude that any error in admitting the t estimony was harmless for two reasons. ¶ 43 First, the testimony was largely cu mulative. The jury heard extensive evidence of Lucero’s d emeanor and actions. Indeed, it was undisputed that Lucero was u pset when the officers handcuffed him and aggressive as t hey escorted him through the police station to the parking lot. Corporal Coulson testified that he requested Officer Vasquez’s assista nce because he anticipated Lucero would be upset that he was going to jail. He then explain ed that as they escorted Lucero thr ough the station, Lucero became increasingly angry, swore at th em, and physically resisted them. 2 Lucero also recites Officer Vasque z’s testimony that police offic ers are trained to “verbalize everything ” to their partners and why they do so. But beyond recounting the testimony, Lucero doesn’t further address it. To the extent he contends that was improper opinion testimony, we decline to address t his undeveloped argument. See People v. Wallin , 167 P.3d 183 , 1 87 (Colo. App. 2007) (declining t o address arguments presented in a perfunctory or conclusory manner). 18 ¶ 44 Another witness present at the pol ice station also described Lucero as aggressive, swearing, and resisting as the officers escorted him through the station. And in addition to this testimony, the jury saw surveillanc e video showing the officers handcuffing Lucero and, thus, w ere able to independently observe and assess Lucero’s demeanor. ¶ 45 Second, the improper testimony w as brief when compared with Officer Vasquez’s proper testimony, which largely focused on what he personally observed. ¶ 46 Given that the improper testimony was cumulative and brief, we conclude that Officer Vasquez’s testimony was harmless. See People v. Dominguez , 2019 COA 7 8, ¶ 77 (concluding that agent’s improper expert testimony was har mless in part because it was cumulative of other evidence); a ccord People v. Baird , 66 P.3d 183, 192 (Colo. App. 2002); see also People v. Mendenhall , 2015 COA 107M, ¶ 69 (stating that improper witness testimony was harml ess because, among other things, it was “brief and constituted a small part of his testimony”). 19 ¶ 47 We conclude any error in admitt ing the improper expert opinion didn’t substantially influ ence the verdict or affect the fairness of the trial. VI. Self-Defense Jury Instruction ¶ 48 We also reject Lucero’s final cont ention that the trial court erred by refusing to instruct the jur y on the affirmative defense of self-defense. ¶ 49 A defendant is entitled to an instru ction on an affirmative defense if he presents “some cr edible evidence” supporting it. § 18- 1-407(1), C.R.S. 2020. We review de novo whether sufficient evidence supports a requested jury instruction. O’Shaughnessy v. People , 2012 CO 9, ¶ 13 . ¶ 50 Lucero asked the court to instr uct the jury on self-defense. In support of the instruction, Lucer o pointed to evidence that he was not bleeding when he arrived at t he police station but was wh en he left. He argued that this evidence est ablished “a scintilla of evidence” that he acted in self-d efense and that he spat on Officer Vasquez “to terminate the abuse that was being inflicted on him.” The trial court disagreed, finding t hat “the quantum of evidence necessary to allow this instruction” wasn’t met. 20 ¶ 51 We agree with the trial court’s ass essment. The only evidence presented showed that Lucero was injured at some point when the officers were attempting to extricat e Officer Vasquez’s wrist fr om the handcuff link. And Lucero doesn’t contend that he spat at Officer Vasquez inside the police station or in response to the officers’ actions to free Officer Vasquez’s w rist. Instead, the evidence shows that Lucero waited until he sat in the police car to assault Offic er Vasquez. Nothing in the record su ggests that Lucero was defending himself at that time or that he fac ed any imminent harm. See § 18- 1-704(1), C.R.S. 2020 (stating wh en a person is justified in using self-defense); cf. People v. Sua zo , 867 P.2d 161, 169 (Colo. App. 1993) (collecting definitions of “im minent” — “near at hand, impending[,] or on the point of hap pening”; “likely to happen without delay”; and “menacingly n ear”) (citations omitted). ¶ 52 We therefore conclude the trial cou rt properly refused to instruct the jury on self-defense. VII. Conclusion ¶ 53 We affirm the judgment of conviction. JUDGE DAILEY and JUDGE KUH N concur.