COURT OF APPEALS,STATE OF COLORADORalph L. Carr Judicial Center2 East 14th AvenueDenver, Colorado 80203Appeal, Boulder County District CourtHonorable Patrick Butler & Andrew Hartman,JudgesCase Number 2014CR437Plaintiff-AppelleeTHE PEOPLE OF THESTATE OF COLORADOv.Defendant-AppellantEMILY ELIZABETH COHENDouglas K. Wilson, Case Number: 2015CA982Colorado State Public DefenderMARK EVANS1300 Broadway, Suite 300Denver, Colorado 80203Phone: (303) 764-1400Fax: (303) 764-1479Email: [email protected]. Reg. #40156 OPENING BRIEF
CERTIFICATE OF COMPLIANCEI hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R.32, including all formatting requirements set forth in these rules, other than the 9,500word limit. Counsel is simultaneously filing a Request for Leave to File Opening Briefin Excess of 9,500 Words. Specifically, the undersigned certifies that: The brief does not comply with C.A.R. 28(g) because: It contains 12,470 words.This brief complies with the standard of review requirement set forth in C.A.R.28(a)(7)(A). For each issue raised by the Defendant-Appellant, the brief contains under a separate heading before the discussion of the issue, a concise statement: (1) of the applicable standard of appellate review with citation to authority; and (2) whether the issue was preserved, and, if preserved, the precise location in the record where the issue was raised and where the court ruled, not to an entire document.I acknowledge that my brief may be stricken if it fails to comply with any of therequirements of C.A.R. 28 and C.A.R. 32. _________________________________ i
TABLE OF CONTENTS PageINTRODUCTION..................................................................................................... 1STATEMENT OF THE ISSUES PRESENTED .................................................1STATEMENT OF THE CASE ...............................................................................2STATEMENT OF THE FACTS .............................................................................4SUMMARY OF THE ARGUMENT......................................................................6ARGUMENTnIwR.ueitmgnueelsrasoTteiuohssne....eC..dv.o.ii.dsu..te.nr.ni.sc.t.et.il.a.r.c.yc.o.o..mu.r.u.rp.tl.el.a.s.i.vn..i.tbo.s.y.l.a.bt..aea.d.ds.e.m.d..it.t.ho.t.ie.nn..g..a.C.l.tlo.eh..ng.r.afe.r.te.oi.o.n.n.Ot..sa.f.t.fib.oi.c.yn.e..n...ooC..fn.l.a-..tuA.e.s.st.et.t.oi.f.ry.a.ni.nn.e.d.gy.......... 8 A. Standard of review................................................................................8 B. Applicable facts...................................................................................10 C. Applicable law and application .........................................................15 i. aAnddmtihtetinCgonthfreocnotamtipolnaiCntlsauvsieo.l.a..t.e..d....t.h..e....h..e..a..r.s..a..y...r..u..l.e..s........15 ii. Aerdromri.t.t..i.n..g....p..r..o..f..e.s..s..i.o..n..a..l...d...i.s.c..i.p..l.i.n...a..r.y....c..o..m....p..l.a..i.n..t.s....w...a..s........19 iii. Talhleegecdolmyipnlga.i.n..t..s...p...r.o..v...i.d..e..d....i.n..a..d..m....i.s..s.i.b...l.e....e.v...i.d..e..n..c..e....o..f........22 iv. Tanhde acsormesplgaeinsttasew..e..r..e...i.n..a..d..m....i.s.s..i.b..l.e...u...n..d..e..r...C..R...E....4..0..4...(.b..)........24 v. Admitting the complaints requires reversal .........................29iIPnIr.sotrfeuscsTtiioohnneasldCaisotrnreidccitutacttci.oo..nu...r.t.o..f.e..r.a.r.te.t.do..r..n.b.e..yy..s..’.i.n.o.c.b.l.ul.i.dg..ia.n.t..ig.o..n..ws...i.tu.h.n.i.n.d..e..r.t.h.t.e.h..e..f..iR.n..ua..ll.e..s.j.u..or..yf........ 31 A. Standard of review..............................................................................31 B. Applicable facts...................................................................................31 ii
C. Applicable law.....................................................................................33 D. Application ..........................................................................................35IrqeIuIge.asrtdioiTnnhgaebelevdeibsretyrhicatitvmioceor usinrhtetheberrepelidaesvtbe.y.d...a.M.l.l.o.s...w..Ci..n.o.g.h...ea..nn..o..ht..ha..ed..r..l.ai.e.t.dt..o..ro.n..r.e..ye..n.t.g.o.a..g.t.ee..ds..t.i.fi.n.y........ 39 A. Standard of review..............................................................................39 B. Applicable facts...................................................................................40 C. Applicable law.....................................................................................41 D. Application ..........................................................................................41awIVnitd.hopurTetshceoenncdseiusblttryiincrgtehscpeoorunortdr idhneegpr traoitvtetohdrrneMeeysq....u.C.e..so.t.h.i.oe..nn..s..o.f..fr.o..h.m.e..r..d.r.e.i.lg.i.bh..et.s.r.a..tt.o.i.n..gc..o.j.u.u..rn.o.s.r.e.s.l....... 43 A. Standard of review..............................................................................43 B. Applicable facts...................................................................................44 C. Applicable law.....................................................................................45 i. Questions from deliberating juries .......................................45 ii. The right to counsel................................................................46 iii. The right to presence..............................................................47 D. Application ..........................................................................................47aaVnn.dd wpriTtehshoeenuctdecisobtnryiscudtletcilnoivguerrhtiendrgeoparrhimveeorddaitfMtioesrd.neACyol.l.he.n.e..n.i.n..os..t.fr..u.h.c.e.t.ri.o..r.n.i.g..ih.n.t.s..h..et.o.r...ac..bo..s.u.e.n.n.s.c.e.e.l.......50 A. Standard of review..............................................................................50 B. Applicable facts...................................................................................50 C. Applicable law.....................................................................................51 i. Procedures for potentially deadlocked juries.......................51 ii. The right to presence and counsel........................................52 D. Application ..........................................................................................53 iii
VI. The cumulative impact of the errors in this case requires reversal..........55 A. Standard of review..............................................................................55 B. Applicable law and application .........................................................55CONCLUSION ........................................................................................................56CERTIFICATE OF SERVICE ..............................................................................57 TABLE OF CASESAuman v. People, 109 P.3d 647 (Colo. 2005)...................................................31,37Bernal v. People, 44 P.3d 184 (Colo. 2002)..............................................................9Blecha v. People, 962 P.2d 931 (Colo. 1998) .................................................9,15,17Crawford v. Washington, 541 U.S. 36 (2004) ............................................. 16,18,21Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005) ................... 10,28,30,39Harper v. People, 817 P.2d 77 (Colo. 1991) ..........................................................24In re Fisher, 202 P.3d 1186 (Colo. 2009) ..........................................................17,20In re Winship, 397 U.S. 358 (1970).........................................................................49Irvin v. Dowd, 366 U.S. 717 (1961) ..........................................................................9Kaufman v. People, 202 P.3d 542 (Colo. 2009) .................................... 24,28,33,37Kentucky v. Stincer, 482 U.S. 730 (1987)...............................................................47Key v. People, 865 P.2d 822 (Colo. 1994).........................................................43,46Kilpatrick v. People, 64 Colo. 209, 170 P. 956 (1917) .....................................19,22Larson v. Tansy, 911 F.2d 392 (10th Cir. 1990) ....................................................52Leonardo v. People, 728 P.2d 1252 (Colo. 1986)....................................... 45-49,54 iv
Liggett v. People, 135 P.3d 725 (Colo. 2006).............................................. 22,23,42Michelson v. United States, 335 U.S. 469 (1948)...................................................40Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962)..............................................55People v. Alexander, 663 P.2d 1024 (Colo. 1983)............................................33,36People v. Ambrose, 907 P.2d 613 (Colo. App. 1994)......................................35,36People v. Barnum, 23 P.3d 1237 (Colo. App. 2001).............................................15People v. Ellsworth, 15 P.3d 1111 (Colo. App. 2000).....................................33,37People v. Goldsberry, 181 Colo. 406, 509 P.2d 801 (1973) .................................24People v. Guzman-Rincon, 369 P.3d 752 (Colo. App. 2015)....43,44,47,48,53,54People v. Harris, 2015 COA 53 ...............................................................................39People v. Lewis, 676 P.2d 682 (Colo. 1984)........................................... 51,52,54,55People v. Lopez, 129 P.3d 1061 (Colo. App. 2005)..............................................22People v. Novitskiy, 81 P.3d 1070 (Colo. App. 2003) .................................... 24-26People v. Payne, 361 P.3d 1040 (Colo. App. 2014) ...........................3,47,48,52-55People v. Pratt, 759 P.2d 676 (Colo. 1988) .......................................................20,21People v. Richardson, 184 P.3d 755 (Colo. 2008).................................................52People v. Rollins, 892 P.2d 866 (Colo. 1995)....................................................28,29People v. Silva, 987 P.2d 909 (Colo. App. 1999)..............................................33,37People v. Spoto, 795 P.2d 1314 (Colo. 1990) .................................................. 24-26 v
People v. Stein, 156 Cal. Rptr. 299 (Cal. Ct. App. 1979)........................... 34,36-38People v. Veren, 140 P.3d 131 (Colo. App. 2005) .............................................9,39People v. Vigil, 127 P.3d 916 (Colo. 2006)........................................................16,18Pueblo Bank & Trust Co. v. McMartin,31 Colo. App. 546, 506 P.2d 759 (1972)........................................................... 34-36Scott v. People, 390 P.3d 832 (Colo. 2017)............................................................24State v. Mahoney, 908 A.2d 162 (N.J. 2006)............................................... 33-36,38Tincombe v. Colorado Construction & Supply Corp,681 P.2d 533 (Colo. App. 1984) ..............................................................................17United States v. Bartek,No. 1:07-CR-26-SPM, 2008 WL 2949437, at *2 (N.D. Fla. July 29, 2008)........18United States v. Cunningham, 679 F.3d 355 (6th Cir. 2012) ..........................18,21United States v. Fontanez, 878 F.2d 33 (2d Cir. 1989).........................................52United States v. Smith, 31 F.3d 469 (7th Cir. 1994)..............................................47United States v. Weichert, 783 F.2d 23 (2d Cir. 1986) .........................................20United States v. Whitehead, 618 F.2d 523 (4th Cir. 1980) ..............................20,21Venalonzo v. People, 388 P.3d 868 (Colo. 2017)....................................... 22,23,42Wade v. United States, 441 F.2d 1046 (D.C. Cir. 1971) ..................................52,53Yusem v. People, 210 P.3d 458 (Colo. 2009).........................................................27 vi
TABLE OF STATUTES AND RULESColorado Revised Statutes Section 18-8-502.............................................................................................23Colorado Rules of Civil Procedure Rule 251.6 .......................................................................................................17 Rule 251.9-251.12...........................................................................................20 Rule 251.10 .....................................................................................................17 Rule 251.18 ..................................................................................... 17,20,22,49 Rule 252.12 .....................................................................................................49Colorado Rules of Criminal Procedure Rule 51.............................................................................................................43Colorado Rules of Evidence Rule 401...........................................................................................................25 Rule 402...........................................................................................................26 Rule 403................................................................................................ 25,27,29 Rule 404...................................................................................7,10,24-26,29,41 Rule 608................................................................................................ 22,23,42 Rule 801...........................................................................................................15 Rule 802...........................................................................................................17 vii
Colorado Rules of Professional Conduct Preamble ¶20 ........................................................................19,21,26,36,37,50 CONSTITUTIONAL AUTHORITIESUnited States Constitution Amendment VI ......................................................................................9,46,47 Amendment XIV ........................................................................................9,47Colorado Constitution Article II, Section 16..............................................................................9,46,47 Article II, Section 23........................................................................................9 OTHER AUTHORITIESAdmissibility in Criminal Prosecution of Adjudication orJudgment in Civil Case or Procedure, 87 A.L.R. 1258 .........................................19 viii
INTRODUCTION When the State tries an attorney for a crime, that crime is defined by theColorado Revised Statutes, not the Rules of Professional Conduct. The centralquestion in this appeal is to what extent attorney ethical rules and alleged violationscan factor into the evidence and law presented to jurors who must decide whether anattorney committed a criminal offense. Ms. Cohen had a right to be tried for thecharges against her without being subject to a referendum on her ethics and success asa lawyer. She also had the same rights to be present in court and represented bycounsel that all defendants are guaranteed. The district court deprived her of thoserights, and this Court should reverse her convictions. STATEMENT OF THE ISSUES PRESENTEDI. Whether the district court violated the Confrontation Clause and numerousevidentiary rules by admitting three Office of Attorney Regulation Counselcomplaints based on allegations by non-testifying witnesses.II. Whether the district court erred by including within the final jury instructions arecitation of attorneys’ obligations under the Rules of Professional Conduct.III. Whether the district court erred by allowing another attorney to testify regardingevery time she believed Ms. Cohen had lied or acted questionably in the past. 1
IV. Whether the district court deprived Ms. Cohen of her rights to counsel andpresence by responding to three questions from deliberating jurors without consultingher or her attorney.V. Whether the district court deprived Ms. Cohen of her rights to counsel andpresence by delivering a modified Allen instruction in her absence and withoutconsulting her or her attorney.VI. Whether the cumulative impact of these errors requires reversal. STATEMENT OF THE CASE Ms. Cohen was admitted to the bar in 2010. (R. Tr. 12/10/14, p.1903) TheState alleged that during her brief practice she took money to handle immigrationmatters, but failed to do so. Prosecutors sought a pretrial ruling on the admissibility of “limited” evidenceconcerning investigations by the Office of Attorney Regulation Counsel (OARC) intoMs. Cohen’s practice. (R. CF, pp.296-315) Their motion stated they would notattempt to admit individual OARC complaints, and was granted. (Id. at 300, 303, 369-70) The State sought and obtained dismissal of multiple counts, and twenty-onetheft counts proceeded to an eleven-day trial. (R. CF, pp.53-56, 65-73, 88-92, 98-99,391-401, 486-87) The final jury instructions included a recitation of attorneys’ 2
obligations under the Rules of Professional Conduct (RPC). (R. Supr. p.224) Jurorsasked four questions during deliberations. Questions two and three were about therelationship between ethical rules and criminal liability; question four prompted thedistrict court to deliver a modified Allen instruction.1 (Id. at 209-11) The court didnot consult either Ms. Cohen or defense counsel regarding questions two throughfour, and neither was present in court for the instruction.2 (Supp. R., 05/15/17Order) The jury acquitted on seven counts, hung on one, and returned verdicts for lessthan the charged amount on six. (R. Supr. pp.235-76) The thirteen convictions rangefrom class two misdemeanors to class four felonies. (R. CF, pp.694-96) The districtcourt sentenced Ms. Cohen to six years of incarceration followed by ten years ofprobation. (Id.)1 A “modified Allen instruction” is an instruction trial courts may give juries regardinga possible deadlock. People v. Payne, 361 P.3d 1040, 1041 n.1 (Colo. App. 2014).2 Undersigned counsel submitted to the district court a “Motion to Settle the Record,”and attached “Defendant’s Statement of Proceedings.” Both took the position thatthe record indicates no consultation regarding questions two through four occurred,and that neither Ms. Cohen nor defense counsel was in the courtroom when thedistrict court delivered the modified Allen instruction. The Motion requested ahearing only if that position was disputed. The State’s Response did not dispute thesubstance of that position. The judge who presided at trial declined to grant ahearing, issuing an order stating: “The record speaks for itself.” Both the State andthe court have had an opportunity to dispute Ms. Cohen’s Statement of Proceedings;neither has done so. 3
STATEMENT OF THE FACTS The prosecution’s theory was that Ms. Cohen took money from clients but didnot earn it. Ms. Cohen defended on grounds that she performed legal services for anyfunds she received. (R. Supr., p.232) The State called two broad categories of witnesses. Individuals in the first wereassociated with the twenty-one charges. A representative sample follows. One witness testified in connection with trial count six, which alleged theft ofbetween $1,000 and $20,000. (R. CF, p.397; R. Tr. 12/08/14, pp.1330-73) Thewitness said she paid Ms. Cohen to help gain legal residency for her husband. (R. Tr.12/08/14, p.1332) She initially believed Ms. Cohen submitted applications to thegovernment to accomplish this, but later learned they were not filed. (Id. at 1339-45)She claimed she was unable to obtain her client file. (Id. at 1342-43) Ms. Cohentestified that her contract with that client involved an hourly fee, and that afterpreparing the necessary paperwork she learned the husband had previously beendeported. (R. Tr. 12/10/14, pp.1957, 1959-60) Submitting the applications couldthus subject him to prosecution. (Id. at 1961) The jury convicted. (R. Supr., p.245) A husband and wife testified regarding trial count four, which alleged theft ofbetween $2,000 and $5,000. (R. CF, p.397; R. Tr. 12/08/14, pp.1374-1429) Theysaid they paid Ms. Cohen to obtain citizenship for the wife, and signed a completed 4
citizenship application, but the application never made it to authorities. (R. Tr.12/08/14, pp.1374-76, 1393-95, 1413) Ms. Cohen prepared an identical application,which they went to her office to sign. (Id. at 1395-97, 1421) They refused to sign itbecause she was not there. (Id. at 1396-97, 1422-23) The couple set a subsequentmeeting with Ms. Cohen, but did not attend it. (Id. at 1408) Ms. Cohen’s testimonyexplained that she earned her fee when she prepared the applications for signature.(R. Tr. 12/10/14, pp.2029-33) The jury acquitted. (R. Supr., p.241) The individuals in the second category of witnesses were associated withattorney regulation. OARC attorney Katrin Rothgery and immigration attorneyNancy Elkind testified, as explained in section I(B). An individual appointed asOARC inventory counsel testified she was able to obtain only twelve of Ms. Cohen’sclient files during OARC’s investigation. (R. Tr. 12/04/14, pp.842-43, 855-56)Immigration attorney Christina Fiflis testified to attorney trust account proceduresand—over objection—to “red flags” in her personal interactions with Ms. Cohen. (R.Tr. 12/09/14, pp.1623-35, 1672-73, 1678-83) An investigator who had examined Ms.Cohen’s bank records testified she had multiple accounts, rarely deposited client fundsin her COLTAF account, deposited some client funds into personal accounts, andshowed little difference in spending patterns between personal and business accounts.(Id. at 1579-98) 5
Ms. Cohen presented evidence that during her brief practice she consulted withother attorneys, and hired an immigration attorney as a consultant to meet with her onmultiple occasions, in an attempt to provide good service to her clients. (R. Tr.12/09/14, pp.1644-46; 1704-07; 1723-24) She testified extensively, explaining thework she performed for clients associated with all twenty-one counts. (R. Tr.12/10/14, pp.1915-2019, 2029-33) Her testimony explained why she had earned thefees she kept. (Id. at 2019-29, 2033-34) During cross-examination the State admitted through Ms. Cohen—overobjection—complete copies of three complaints filed against her by OARC with thePresiding Disciplinary Judge. (R. Tr. 12/11/14, pp.2068, 2075-76, 2085) She was thefinal witness. SUMMARY OF THE ARGUMENT This should have been a trial about whether Ms. Cohen committed theft.Instead, it involved copious evidence and law concerning the RPC and Ms. Cohen’salleged breaches. The district court reversibly erred in five ways. First, the court admitted three complaints filed by OARC against Ms. Cohen.All were based on out-of-court statements by non-testifying witnesses, and conveyedallegations that Ms. Cohen had “converted” client funds, engaged in ethicalwrongdoing, and lied on numerous specific occasions. Admitting the complaints 6
violated the Confrontation Clause and hearsay rules because they containedtestimonial statements admitted for their truth. Admitting them was also erroneousbecause legal pleadings in professional disciplinary proceedings cannot be used asproof in a criminal case. They also violated the prohibition on evidence regardingwitness truthfulness on particular occasions. Additionally, the complaints wereinadmissible under CRE 404(b) and as res gestae because they were irrelevant to anymaterial issue and carried tremendous unfair prejudice. Second, the court placed in the jury instructions a recitation of attorney ethicalobligations under the RPC. By including those rules as a statement of law jurors wererequired to apply, the instructions conflated them with the rules necessary for theimputation of criminal liability. They impermissibly allowed jurors to find that if Ms.Cohen committed an ethics violation, she was guilty of theft. Third, the court allowed an attorney to testify regarding every lie she believedMs. Cohen had ever told, and every instance of questionable conduct in which shebelieved Ms. Cohen had ever engaged. This too violated the prohibition on evidenceregarding witness truthfulness on particular occasions, and was simply a characterassault prohibited under CRE 404(b). Fourth, the court did not consult Ms. Cohen or her attorney before answeringthree jury questions during deliberations. This violated her constitutional rights to be 7
represented by counsel and to be present at trial. Several questions concerned therelationship between ethical rules, alleged violations, and the elements of theft. Ms.Cohen was deprived of any ability to influence the court’s response, and the responseit provided was erroneous. Finally, the court did not obtain Ms. Cohen’s or her attorney’s input orpresence before delivering a modified Allen instruction to deliberating jurors. Thistoo violated her rights to counsel and presence. That violation deprived Ms. Cohenof the ability to influence jurors at a key phase of trial, and to argue the district courtshould have applied existing guidance concerning potentially deadlocked juries. Those five errors, viewed either individually or cumulatively, deprived Ms.Cohen of a fair trial on the charges against her. ARGUMENTI. The district court violated the Confrontation Clause and numerousevidentiary rules by admitting three Office of Attorney Regulation Counselcomplaints based on allegations by non-testifying witnesses.A. Standard of review. Ms. Cohen preserved this issue by pretrial motion and contemporaneousobjection; the district court overruled. (R. CF, pp.494-95; R. Tr. 12/01/15, pp.91-92,97-98; R. Tr. 12/11/14, pp.2067-68, 2075-76, 2085) 8
“Appellate review of a possible Confrontation Clause violation is de novo.”Bernal v. People, 44 P.3d 184, 198 (Colo. 2002). When a violation has occurred, thisCourt must reverse the subsequent conviction unless the State proves the error washarmless beyond a reasonable doubt. Id. at 200. When applying that standard, thisCourt asks “not whether, in a trial that occurred without the error, a guilty verdictwould surely have been rendered, but whether the guilty verdict actually rendered inthis trial was surely unattributable to the error.” Blecha v. People, 962 P.2d 931, 942(Colo. 1998) (quotation omitted). As to the non-confrontation components of this issue, trial courts havediscretion over evidentiary rulings. See, e.g., People v. Veren, 140 P.3d 131, 136 (Colo.App. 2005). When a trial court has abused its discretion, this Court typically appliesthe harmless error standard of review. Under that standard, reversal is required unlessthe error did not “substantially influence the verdict or impair the fairness of thetrial[.]” Id. at 140. Ms. Cohen nevertheless urges this Court to apply the constitutional harmlesserror standard to all components of this issue. The state and federal Constitutionsguarantee a trial by a fair and impartial jury. U.S. Const. amends. VI, XIV; Colo.Const. art. II, §§ 16, 23; see Irvin v. Dowd, 366 U.S. 717, 722 (1961). This includes theright to have jurors decide guilt or innocence based solely on evidence properly 9
introduced at trial. Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005).B. Applicable facts. OARC has filed three complaints against Ms. Cohen with the PresidingDisciplinary Judge. (R. P. Exs. 101-103, pp.466, 474, 513) Before trial, the State gavenotice of its intent to introduce “limited” evidence regarding the OARC proceedings.(R. CF, p.296) It sought to admit evidence that Ms. Cohen was on notice she wasbeing investigated by OARC, and that she allegedly failed to comply with ethicalobligations concerning fees and handling client funds. (Id. at 300) The State’s motionindicated it would not admit the actual complaints: - “The People do not intend to adduce at trial evidence relating to individual complainants in the OARC case who are not victims in the criminal case.” (Id.) - “The People are not asking for all the allegations in the disciplinary case to be admitted at trial … identities of complainants other than those in the current criminal proceedings will not be mentioned.” (Id. at 303) The district court issued a pretrial order finding the proposed OARC evidencewas admissible as res gestae. (Id. at 369) It also granted Ms. Cohen’s request fornotice of any evidence the State intended to admit through CRE 404(b). (Id. at 335- 10
38) Additionally, it ordered “evidence of the dismissed Counts shall not be admissiblein this trial.” (Id. at 487) A different judge presided at trial. At trial, OARC attorney Ms. Rothgery testified over Ms. Cohen’s relevanceobjection. (R. Tr. 12/03/14, p.708) Her testimony indicated OARC investigated Ms.Cohen based on complaints from her clients. (Id. at 721-727) The State admittedthrough her two letters from May 2012, sent by OARC to Ms. Cohen, indicating shewas being investigated. (Id. at 721-723) The letters contain allegations similar tothose in this case: she took money to perform services but had not done so. (R. P.Exs. 23-24, pp.73-76) Ms. Rothgery testified that based on the allegations in the letters, as well asother grievances, OARC filed two public complaints with the Presiding DisciplinaryJudge. (R. Tr. 12/03/14, p.731) Both were still pending. (Id. at 772) Regarding one,however, the Presiding Disciplinary Judge had “already found Ms. Cohen responsiblefor having violated the [RPC],” so the only remaining issue was the discipline to beimposed.3 (Id. at 772, 777-78) Immigration attorney Ms. Elkind testified as an expert over Ms. Cohen’srelevance objection. (R. Tr. 12/02/14, p.498) She explained that “if a lawyer takes a3 Although the district court prohibited Ms. Cohen from presenting this informationto the jury, her attorney represented that a default judgment was entered after she hadrequested a stay of time on account of experiencing mental illness. (R. Tr. 12/03/14,pp.782-84) 11
fee from a client and fails to put it into their trust account, but instead just takes it andspends it himself of herself,” that is “conversion.” (Id. at 511-12) “Conversion is theterm we use in law school for theft.” (Id.) The actual OARC complaints were not admitted until the State cross-examinedthe final defense witness: Ms. Cohen. When it moved to admit the first complaint,she objected on grounds of relevance, hearsay, and the inability to cross-examine. (R.Tr. 12/11/14, p.2068) The district court responded: “For previous court rulings, it’sadmitted.” (Id.) Ms. Cohen objected to the second complaint on grounds that it was404(b) evidence not addressed at the motions hearing, highly prejudicial, violated theconfrontation and due process rights, and included dismissed counts. (Id. at 2075-76)The State represented it was admissible “pursuant to the Court’s previous rulings …”(Id.) The district court responded: “So I will overrule the objection, per previousrulings, because it does put the Defendant on notice of her obligations, and thatdefinitely impacts the intent element in the pending complaint.” (Id. at 2076) Whenthe State moved to admit the third complaint, Ms. Cohen objected for the samereasons and was overruled. (Id. at 2085) All three complaints went to the jury. The first complaint states a number of allegations that occurred before Ms.Cohen was licensed, including: 12
- She failed to properly disclose her maiden name on her bar application, and testified falsely in a deposition concerning her maiden name. - She failed to disclose prior employment on her bar application. - She engaged in the unauthorized practice of law. - She testified falsely in a civil suit. - She failed to disclose past due debts on her bar application. (R. P. Ex. 101, pp.466-473)In rebuttal closing, the State argued the first complaint was relevant to “theimportance of telling the truth …” (R. Tr. 12/11/14, p.2196) It explained: [OARC] found that the Defendant committed perjury in a previous action in front of Judge Gowchinski [sic] – and if you have any doubt about the findings, take a look. They also found that in her deposition. She wouldn’t be truthful about what her name actually was, and that she had practiced law for several years without having passed the bar, none of which was disclosed on her application. (Id. at 2196-97 (emphasis added)) The second complaint contains factual allegations concerning seven differentclient matters, each of which is followed by allegations that Ms. Cohen violatednumerous ethical rules. (R. P. Ex. 102, pp.474-512) The first client matter isrepresentative. It alleges Ms. Cohen took over $8,000 from two individuals to work 13
on immigration issues, but failed to place the money in a COLTAF account and nevercompleted substantial work or filed the necessary forms. (Id. at 475-79) Ten claimsof ethical violations follow, the last of which alleges she “violated Colo. RPC 8.4(c) byknowingly converting the $8,250.00 in attorneys’ fees paid to her when she exercisedunauthorized dominion and control over those funds prior to earning them.” (Id. at482) Each of the other six client matters in the second complaint has an associatedclaim of Ms. Cohen “knowingly converting” funds. (Id. at 486, 490, 493, 500, 506,511) Fifty-eight total ethics violations are alleged, including that she either lied to herclients or lied to OARC during its investigation. In rebuttal closing, the Stateexplained that the allegations in the second OARC complaint are substantivelyequivalent to the allegations in this case. (R. Tr. 12/11/14, pp.2197-98) The third OARC complaint is similar to the second, containing three sets offactual allegations regarding twenty ethical violations. (R. P. Ex. 103, pp.513-527)The factual allegations relate to dismissed counts thirty-two and thirty-five, and trialcount twelve. (Id. at 514, 519, 522; R. CF, p.72, 486-87; R. Supr. p.257) The State’srebuttal closing indicated the three complaints substantiated the criminal charges: [T]here’s some sort of implication throughout the case that somehow attorney regulation overreacted to all this nonsense. You read those complaints and tell me whether or not you think attorney regulation overreacted. But after you have got those 14
three complaints filed for this kind of behavior, you can understand why theft charges were filed and you are being asked to consider them. (R. Tr. 12/11/14, p.2202) Jurors illustrated their interest in the OARC evidence, asking multiple questionsof witnesses and twice asking during deliberation how they could use it whenevaluating whether the elements of theft were proved. (R. Supr. pp.50, 55, 58, 180,185-86, 206, 209-10)C. Applicable law and application.i. Admitting the complaints violated the hearsay rules and the Confrontation Clause. Hearsay is an out-of-court statement offered into evidence to prove the truthof the matter asserted. CRE 801(c). Hearsay statements are presumptively unreliablebecause the declarant is not present to explain the statement in context and is notsubject to cross-examination. Blecha, 962 P.2d at 937. “Due to this presumptiveunreliability, hearsay statements are generally not admissible as evidence at trial.” Id.The proponent of a statement bears the burden of proving it is not inadmissiblehearsay. People v. Barnum, 23 P.3d 1237, 1239 (Colo. App. 2001). The Confrontation Clause prohibits admitting testimonial hearsay unless thedeclarant is unavailable and the defendant has had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). Out-of-court statements 15
are testimonial if they “were made under circumstances which would lead an objectivewitness reasonably to believe that the statement would be available for use at a latertrial.” Id. at 51-52. Stated alternately, whether a statement is testimonial depends onwhether an objective person in the declarant’s position “would believe her statementswould lead to punishment of defendant.” People v. Vigil, 127 P.3d 916, 925 (Colo.2006) (quotation omitted). All three of the OARC complaints were double-hearsay. They were writtenout-of-court by Ms. Rothgery, and their substance consisted of out-of-courtinformation provided to OARC by other individuals. The first set of factualallegations in the second complaint is representative. Someone told someone atOARC they paid Ms. Cohen to handle immigration matters, and she did not do so.(R. P. Ex. 102, pp.475-79) Ms. Rothgery then wrote that information in a complaint.The complaint was then admitted through Ms. Cohen. The complaints were admitted and used for their truth. Although theprosecution did not provide a basis for admitting the first, it argued that it illustratedMs. Cohen “committed perjury” and was untruthful. (R. Tr. 12/11/14, pp.2068,2196-97) Regarding the second complaint, and by extension the third, the Stateargued they showed “the same kind of client handling issues we have in this case …”(Id. at 2075-76, 2197-98) The State’s asserted purpose for admitting the complaints 16
thus depended on them being true. Because the complaints were hearsay, they werepresumptively unreliable and inadmissible. CRE 802; Blecha, 962 P.2d at 937. No exception to the hearsay bar was argued, and none applied. In Tincombe v.Colorado Construction & Supply Corp., this Court held consumer complaints filed withthe Attorney General’s Consumer Fraud Office, as well as a criminal complaint filedagainst the defendants, were not admissible under either the business record or publicrecords exceptions. 681 P.2d 533, 534 (Colo. App. 1984). Complaints filed with andby OARC are directly analogous. Even if an exception to the hearsay bar applied, which it did not, thecomplaints were inadmissible under the Confrontation Clause. OARC is aninvestigative body with subpoena power. C.R.C.P. 251.10(b)(2). When itsinvestigation finds a formal complaint is warranted, a trial can result. C.R.C.P.251.18(f)(4)(D) (referring to disciplinary proceedings as a “trial”). Following trial, thesubject attorney can be punished through economically devastating disciplinarymeasures. C.R.C.P. 251.6; In re Fisher, 202 P.3d 1186, 1199 (Colo. 2009) (recognizingattorney disciplinary proceedings are “quasi-criminal”). By the nature of what OARC does, an objective witness providing statementsto OARC would reasonably believe that they “would be available for use at a latertrial[,]” or would “lead to punishment” of the person against whom their complaint 17
was lodged. See Crawford, 541 U.S. at 51-52; Vigil, 127 P.3d at 925. The complaintswere thus testimonial. See United States v. Cunningham, 679 F.3d 355, 383 (6th Cir.2012) (assuming without deciding the admission of factual findings from disbarmentdecisions violated the Confrontation Clause); United States v. Bartek, No. 1:07-CR-26-SPM, 2008 WL 2949437, at *2 (N.D. Fla. July 29, 2008) (finding a complaint, “as afiled pleading in a legal matter, contains pretrial statements of unavailable declarantswho are adverse to Defendant” and is testimonial). Because the complaints were testimonial, they could not be admitted unlesstheir declarants were unavailable and Ms. Cohen had an opportunity to cross-examinethem. See Crawford, 541 U.S. at 68. Although Ms. Cohen was able to cross-examineMs. Rothgery before the complaints were admitted, she never cross-examined themyriad individuals whose statements formed their substance.4 The first containsallegations based on statements from an individual she had dated, his father, and anattorney. (R. P. Ex. 101, pp.467-71) The second and third complaints were based onstatements of former clients who provided information to OARC. (R. P. Exs. 102-103, pp.474-527) Ms. Cohen was unable to question any of these people regardingtheir bias, motive, understanding of events, or whether she had actually done anythingwrong. Further, the State never attempted to show any of them were unavailable.4 With one exception. An individual mentioned in the third complaint’s first set offactual allegations testified. (R. P. Ex. 103, pp.514-16; R. Tr. 12/05/14, p.1089) 18
Admitting the three OARC complaints violated both the hearsay rules and theConfrontation Clause.ii. Admitting professional disciplinary complaints was error. Judgments in civil actions generally cannot be admitted into evidence in acriminal trial to establish the facts upon which they were rendered. Kilpatrick v. People,64 Colo. 209, 215–16, 170 P. 956, 959 (1917). The reason is that the parties are notthe same, and different standards of proof apply. Id.; Admissibility in CriminalProsecution of Adjudication or Judgment in Civil Case or Procedure, 87 A.L.R. 1258 (originallypublished 1933) (same). “It would not be just to convict a defendant by reason of ajudgment obtained against him civilly by a mere preponderance of the evidence.”Kilpatrick, 64 Colo. at 215–16, 170 P. at 959. The same reasoning applies to evidence of attorney disciplinary proceedings.Colorado’s RPC expressly states that a violation “should not itself give rise to a causeof action against a lawyer nor should it create any presumption in such a case that alegal duty has been breached.” Colo. RPC Preamble, ¶20. To the contrary, “thepurpose of the Rules can be subverted when they are invoked by opposing parties asprocedural weapons.” Id. As with civil actions, disciplinary proceedings involve different parties andburdens of proof. Disciplinary proceedings are initiated and prosecuted by OARC, 19
not a district attorney. C.R.C.P. 251.9-251.12. The rules governing criminalproceedings do not automatically apply, and disciplinary charges must be proven byonly clear and convincing evidence. C.R.C.P. 251.18(d); In re Fisher, 202 P.3d at 1199. The supreme court’s analysis in People v. Pratt also indicates that mereallegations by OARC are inadmissible in criminal trials. 759 P.2d 676, 681-82 (Colo.1988). In Pratt the prosecution cross-examined a defense witness concerning agovernment audit of a nursing home connected to the case. Id. at 681. The audit hadbeen closed with no adverse action taken against the witness. The supreme courtreasoned that “[u]nproven accusations, by themselves, do not raise an inference ofimproper actions.” Id. at 682. “Similarly, a pending criminal charge against a witnessis an improper subject for impeachment.” Id. It concluded, by analogy, that the sameconsiderations applied to the audit. Id. Hence the trial court abused its discretion byallowing the Pratt cross-examination. Cross-examination concerning unprovenOARC allegations is directly analogous. Although some courts have indicated attorney witnesses can be impeachedwith questions about a prior disbarment, they have not suggested that legal pleadingsfrom the disbarment process can be admitted. See United States v. Weichert, 783 F.2d23, 26 (2d Cir. 1986); United States v. Whitehead, 618 F.2d 523, 529 (4th Cir. 1980). Tothe contrary, one has indicated that disbarment-related documents are inadmissible 20
extrinsic evidence. Whitehead, 618 F.2d at 529. Both decisions issued before Crawford,541 U.S. 36, and thus do not address the associated confrontation concerns. TheSixth Circuit, in contrast, has assumed it violated the Confrontation Clause to admitallegations and factual findings in disbarment decisions against lawyers separatelycharged with crimes. Cunningham, 679 F.3d at 383-84 (finding any error was harmlessdue to overwhelming evidence and the trial court’s instruction to disregard theevidence). Here the complaints were inadmissible because of their nature. They were usedto support the State’s position that Ms. Cohen was untruthful, breached various dutiesto clients, and knowingly “converted” client funds. The rules upon which they werebased, however, state that a violation “should not itself give rise to a cause of actionagainst a lawyer nor should it create any presumption in such a case that a legal dutyhas been breached.” Colo. RPC Preamble, ¶20. Using evidence of alleged RPCviolations to create a presumption of wrongdoing was, itself, a violation of those rules. The evidence surrounding the complaints cast them in two different lights.Under one, they were simply unproven allegations by OARC. As such, they shouldnot have raised an inference of improper action and were inadmissible asimpeachment material. See Pratt, 759 P.2d at 682. 21
Under the other, testimony indicated that two of the complaints had alreadybeen resolved; the first with a private admonition from “the Court” and the third bythe Presiding Disciplinary Judge’s findings that the alleged ethical violations occurred.(R. Tr. 12/03/14, pp.720-21, 772, 777-78) Jurors were thus informed that a judge hadalready rendered a decision on many of the complaints’ allegations. Colorado courtshave held for a hundred years that is improper. See Kilpatrick, 64 Colo. at 215-16, 170P.2d at 959. It “would not be just” to allow a judgment to serve as proof in a criminalcase, when that judgment was obtained between different parties under differentburdens. See id.; see also C.R.C.P. 251.18(d).iii. The complaints provided inadmissible evidence of alleged lying. A witness may not opine regarding whether another person was telling thetruth on a particular occasion, even when the other person is the defendant in acriminal case. CRE 608(a); Venalonzo v. People, 388 P.3d 868, 877-78 (Colo. 2017);Liggett v. People, 135 P.3d 725, 731 (Colo. 2006). The reason is that a witness’s“personal opinion on the credibility of witnesses intrudes upon the province of thejury to make credibility determinations.” People v. Lopez, 129 P.3d 1061, 1066 (Colo.App. 2005). Credibility determinations are to be made by the fact-finder, not by atestifying witness. Liggett, 135 P.3d at 732. Further, when one witness expresses a 22
belief as to the veracity of another, that belief “is simply irrelevant; it does nothing tomake the inference that another witness lied any more or less probable.” Id. at 731. Although specific instances of conduct may be inquired into on cross-examination concerning the witness’s character for truthfulness or untruthfulness,they cannot be proved by extrinsic evidence. CRE 608(b). Here the complaints reflected the belief of their declarants that Ms. Cohen liedon specific occasions. The first alleged she lied on her bar application and in court ona particular date. (R. P. Ex. 101, pp.473) The second and third alleged she made falsestatements to clients on numerous occasions, and lied to OARC during itsinvestigation. (R. P. Exs. 102-103, pp.482, 499, 505, 510-11, 518, 526) That type ofevidence is categorically prohibited. See CRE 608(a); Venalonzo, 388 P.3d at 877. Thedeclarants’ opinion of Ms. Cohen’s credibility was irrelevant and invaded the provinceof the jury. See Liggett, 135 P.3d at 731-32. Further, it could not be proved byextrinsic evidence. See CRE 608(b). The prosecutor exacerbated the impact of this error by arguing that not onlydid Ms. Cohen lie, she “committed perjury” before a named judge. (R. Tr. 12/11/14,p.2196) Perjury is a class four felony. § 18-8-502, C.R.S. 2017. Jurors heard thatOARC’s investigation found Ms. Cohen lied on multiple specific occasions, and thatshe lied criminally at least once. The prosecutor’s intentional injection of unrelated 23
prior criminal activity was, standing alone, reversible error. See People v. Goldsberry, 181Colo. 406, 411, 509 P.2d 801, 804 (1973).iv. The complaints were inadmissible under CRE 404(b) and as res gestae. CRE 404(b) governs the admissibility of uncharged conduct. People v. Novitskiy,81 P.3d 1070, 1071 (Colo. App. 2003), abrogated on other grounds by Scott v. People, 390P.3d 832 (Colo. 2017). It mandates that “[e]vidence of other crimes, wrongs, or actsis not admissible to prove the character of a person in order to show that he acted inconformity therewith.” Uncharged conduct evidence is generally inadmissible, in part because it is“unfair to require a defendant to defend not only against the crime charged, butmoreover, to disprove the prior acts or explain his or her personality.” Kaufman v.People, 202 P.3d 542, 552 (Colo. 2009). Prior crimes evidence is especiallyproblematic, as it “casts damning innuendo likely to beget prejudice in the minds ofjuries.” Harper v. People, 817 P.2d 77, 85 (Colo. 1991) (citations omitted). Before admitting such evidence, trial courts must conduct the four-part analysisprescribed by People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). They first ask whetherthe proffered evidence relates to a material fact. Second, courts determine whetherthe evidence is logically relevant—does it have “any tendency to make the existenceof [the material fact] more probable or less probable than it would be without the 24
evidence[?]” CRE 401. Third, they determine whether the proffered evidence isrelevant independent of the inference that the defendant has a bad character andacted in conformity with that bad character. CRE 404(b). Finally, courts mustdetermine whether the probative value of the proffered evidence is substantiallyoutweighed by the danger of unfair prejudice. CRE 403. Failure to conduct the Spotoanalysis of CRE 404(b) evidence is reversible error when the record does not supportthe trial court’s admission of the evidence. See Novitskiy, 81 P.3d at 1072. Here it is unclear what evidentiary theory the State believed applied to thecomplaints. (R. CF, pp.300, 303) The State’s explanation when it sought to admitthem, that they were relevant to Ms. Cohen’s mental state, suggests it was proceedingunder CRE 404(b). (R. Tr. 12/11/14, pp.2075-76) Ms. Cohen requested, and was granted, pretrial notice of any CRE 404(b)evidence. (R. CF, p.335) Rather than providing notice, the State specifically declaredbefore trial it would not introduce the complaints. (Id. at 300, 303) Their subsequentadmission thus violated the text of the rule—“the prosecution in a criminal case shallprovide reasonable notice in advance of trial…”—and left Ms. Cohen unprepared toaddress them. See CRE 404(b). It appears the State simply took advantage of the factthat a different judge made the pretrial rulings in this case, when those rulings neveraddressed admission of the complaints themselves. Indeed, the pretrial judge had 25
concluded that evidence of the dismissed counts, which was included in the thirdcomplaint, would “constitute CRE 404(b) evidence” and was inadmissible. (R. CF,pp.72, 486-87; R. P. Ex. 103, pp.519-20, 522-24) The State’s pretrial declarations also resulted in the complaints being admittedwithout the analysis necessary under Spoto. Failure to conduct that analysis was error.See Novitskiy, 81 P.3d at 1072. Had the State given the district court the opportunityto conduct the proper analysis, it likely would have found the evidence wasinadmissible. Ms. Cohen is not disputing that her knowledge of OARC’s investigationsrelated to her awareness of the applicable ethical rules. Testimony that she had beeninvestigated, however, is far different from admitting sixty pages of legal pleadingsalleging nearly eighty specific and wide-ranging ethical violations. Because violations of the RPC should not “create any presumption” that “alegal duty had been breached[,]” the complaints themselves neither related to nor wererelevant to any material issue. See Colo. RPC Preamble, ¶20; Spoto, 795 P.2d 1318.They were thus inadmissible under general relevance principles. CRE 402. Thecomplaints served only to support the State’s position that Ms. Cohen had a badcharacter and propensity to lie, as prohibited by CRE 404(b). Even if the complaints were somehow probative of Ms. Cohen’s mental state,their probative value was substantially outweighed by their danger of unfair prejudice. 26
See CRE 403. To the extent evidence of ethical allegations illustrated her mindset,that evidence was provided by the charges themselves. Because jurors had alreadyheard evidence regarding twenty-one different charged client matters, the tenadditional matters referenced in the second and third complaints added little. SeeYusem v. People, 210 P.3d 458, 467-68 (Colo. 2009) (the balancing required by CRE 403requires consideration of factors such as “the availability of alternative means ofproof”). Witnesses had already testified that Ms. Cohen knew she was underinvestigation by OARC for allegedly committing ethical violations. See id. (R. Tr.12/03/14, pp.721-27) The complaints were unfairly prejudicial because they conveyed that thesupreme court’s investigatory arm had already determined Ms. Cohen was guilty ofdoing precisely what she was charged with. Further, jurors heard the PresidingDisciplinary Judge agreed with OARC’s assessment in one of the complaints, whichincluded one of the charges of conviction. (R. Tr. 12/03/14, pp.772, 777-78; R. P.Ex. 103, pp.514-16; R. Supr. p.257) A judge believed she had engaged in conversion,and conversion is “the term we use in law school for theft.” (R. Tr. 12/02/14,pp.511-12) The complaints thus relieved jurors of the need to determine forthemselves if Ms. Cohen committed a crime. Much like “screening process”arguments, they encouraged jurors “to rely on [OARC and the Presiding Disciplinary 27
Judge’s] judgment instead of their own convictions.” See Domingo-Gomez, 125 P.3d at1052. The prosecution’s cross-examination of Ms. Cohen concerning the complaints,as well as its closing argument, suggested jurors do just that: “[A]fter you have gotthose three complaints filed for this kind of behavior, you can understand why theftcharges were filed and you are being asked to consider them.” (R. Tr. 12/11/14,pp.2078-85, 2202) Admitting the complaints expanded this case from twenty-one client matters tothirty-one on the last day of trial. It was unfair and unlawful to require Ms. Cohen toexplain or defend against ten additional accusations of wrongdoing, especially sincethose accusations were not admitted until after all other witnesses had testified andthe State had expressly assured her it would not admit them. See Kaufman, 202 P.3d at552. As the pretrial judge implicitly concluded, the complaints themselves were notadmissible as res gestae. (R. CF, p.487) They were not evidence without which “themain fact might not be properly understood.” See People v. Rollins, 892 P.2d 866, 872-73 (Colo. 1995) (quotation omitted). The “main fact” was that Ms. Cohen wasaccused of stealing clients’ money. That was easily understood from the twenty-onecharges presented, and was not clarified by the admission of ten additional client 28
matters, much less her bar application. Likely for that reason, the State did notattempt to admit the complaints in its case-in-chief or in pretrial motions practice. Nor were the client matters in the complaints somehow intertwined with thecharged offenses (with the exception of the one that duplicated a charged offense).The complaints stated completely independent allegations of wrongdoing that weregoverned by CRE 404(b). See Rollins, 892 P.2d at 873. Even if some of thecomplaints’ content could have been characterized as res gestae, the complaintsthemselves were inadmissible under CRE 403 for the same reasons stated above.v. Admitting the complaints requires reversal. Admitting the complaints the day of closing arguments was devastating to Ms.Cohen’s defense. She could not defend against allegations made by witnesses whonever testified, as reflected in documents authored by a witness who had long sincebeen released by the court. This case boiled down to whether jurors believed Ms. Cohen or the witnessesagainst her. For some of the charges, she was able to show that she either hadprovided, or intended to provide, legal services in exchange for the fees she received.Jurors acquitted on those counts. (R. Supr., pp.235-76) On other charges, jurors hadto take Ms. Cohen at her word. Evidence documenting OARC’s and the PresidingDisciplinary Judge’s belief that she had lied on multiple occasions, perjured herself 29
before a judge, and stolen from multiple additional clients, necessarily factored intohow jurors credited her testimony. The complaints’ prejudicial impact was enhanced by the district court’sinstructions, which elevated the ethical rules to statements of law necessary to decidea verdict (issue II). Additionally, when jurors asked the district court duringdeliberations how they could “use the decisions by the OAR and Supreme Court[,]”the district court provided no guidance (issue IV). (R. Supr., pp.209-10) On thecharges where the evidence was unclear, jurors were allowed to assume the complaintsshowed guilt. That is what the prosecution asked them to do: “But after you have gotthose three complaints filed for this kind of behavior, you can understand why theftcharges were filed and you are being asked to consider them.” (R. Tr. 12/11/14,p.2202) Because that request came in rebuttal closing, it was the last thing jurorsheard from counsel before deliberating and was “foremost in their thoughts.” SeeDomingo-Gomez, 125 P.3d at 1052. It was unlawful to use legal pleadings in OARC cases to vastly expand thescope of this criminal case. That expansion was harmful under any standard ofreview. This Court should thus reverse Ms. Cohen’s convictions. 30
II. The district court erred by including within the final jury instructions arecitation of attorneys’ obligations under the Rules of Professional Conduct.A. Standard of review. Ms. Cohen neither objected nor agreed to the substance of the juryinstructions. (R. Tr. 12/09/14, pp.1524-34; R. Tr. 12/10/14, pp.1765-77, 1889-93)This Court thus applies the plain error standard. In the context of jury instructions,plain error review requires this Court to “focus upon whether the instructional errorprevented the jury from making a finding that the law requires so as to affect asubstantial right of [the defendant’s] and undermine the fundamental fairness of hertrial.” Auman v. People, 109 P.3d 647, 665 (Colo. 2005). Reversal is required if a“reasonable possibility exists that the erroneous instruction contributed to [thedefendant’s] conviction such that serious doubt is cast upon the reliability of the jury’sverdict.” Id. That possibility exists if the instructional error went to a contestedevidentiary issue and the evidence was not overwhelming. Id.B. Applicable facts. The district court provided jury instruction 11, explaining the “law” associatedwith client funds: Under Colorado law, an attorney earns fees only by conferring a benefit on or performing a legal service for the client. Unless the attorney provides some benefit or service in exchange for the fee, the attorney has not earned any fees and the attorney cannot treat advance fees as her property. 31
All client funds—including engagement retainers, advance fees, flat fees, lump sum fees, etc. must be held in trust until there is a basis on which to conclude that the attorney “earned” the fee; otherwise, the funds must remain in the client’s trust account because they are not the attorney’s property. A lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in trust accounts. Complete records of such funds and other property of clients or third parties shall be kept by the lawyer. (R. Supr. p.224)Jurors were also instructed: “‘Victim’ means any natural person against whom anycrime has been perpetrated or attempted, as crime is defined under the laws of thisstate or of the United States.” (Id. at 231) In rebuttal closing, the prosecution emphasized that instruction 11 explainedthe relevant law to jurors: Now here’s where I want to close. Take a look at the jury instructions. Instruction 11 is really, really, really important because it puts down why we’ve been talking about COLTAFF [sic] accounts and trust accounts and all this nonsense. You probably have been thinking, man, I have heard more about trust accounts than I ever want to hear about, because it explains to you what the law is. And the law is clear and the burden is on the lawyer to make sure that you don’t spend a client’s money, especially these kinds of clients who are confused when they start out. (R. Tr. 12/11/14, p.2199 (emphasis added)) 32
C. Applicable law. Trial courts must accurately instruct juries on the relevant law, but must notgive instructions that misstate the law or unduly emphasize some part of the evidence.People v. Ellsworth, 15 P.3d 1111, 1116 (Colo. App. 2000). Nor should they instruct onabstract principles of law unrelated to the issues in controversy. People v. Alexander, 663P.2d 1024, 1032 (Colo. 1983). When a jury has been instructed on an extraneousconcept of law, it “may have wondered why it was given the instruction, decided thatit must have been for some purpose, and forced the evidence to fit the instruction …”Kaufman, 202 P.3d at 562. If “giving of an instruction creates a situation in which itwould be misleading and confusing for the trial court to ask the jury to resolve anissue that does not exist, then the error cannot be considered harmless.” People v.Silva, 987 P.2d 909, 915 (Colo. App. 1999). Multiple jurisdictions have directly addressed instructing jurors on attorneyprofessional rules, and held doing so is reversible error. State v. Mahoney concerned alawyer accused of stealing client funds. 908 A.2d 162, 163 (N.J. 2006). A copy ofNew Jersey’s rule detailing the recordkeeping, trust account, and disclosureobligations for lawyers was admitted into evidence. Id. at 173-74. The trial court theninstructed jurors they could refer to the rule in deliberations. Id. at 174. The NewJersey Supreme Court held the trial court’s failure to instruct the jury on how to 33
consider and apply the rule was reversible error. Id. It reasoned that “the unexplainedadmission of a rule of attorney conduct carries the certain risk that the jury couldconflate the Rule’s requirements with those necessary for the imputation of criminalliability …” Id. Similarly, People v. Stein addressed an attorney charged with theft byembezzlement from client trust funds. 156 Cal. Rptr. 299, 301 (Cal. Ct. App. 1979).The trial court instructed jurors on the applicable Rules of Professional Conduct, andindicated jurors could consider alleged violations as proof the defendant had thespecific intent required for the crimes charged. Id. at 302. The California Court ofAppeal found it was reversible error to conflate a professional rule violation withcriminal liability. It was “improper to use the professional rules of conduct to showthat a violation of the rules, if any, would tend to prove that defendant possessed thespecific intent required” to commit a crime. Id. “Even though the instructions didnot presume a violation of the rules, the only reasonable inference that the jury could havedrawn was that evidence of a violation was in fact evidence establishing the requiredintent to commit the crimes charged.” Id. (emphasis added). This Court has repeatedly found error in jury instructions that—althoughlegally correct—were improper under the facts of their cases. Pueblo Bank & Trust Co.v. McMartin, for example, was an action to recover money on two promissory notes. 34
31 Colo. App. 546, 547, 506 P.2d 759, 760 (1972). The trial court rejected a tenderedtheory of defense instruction, but provided jurors a correct statement of statutory lawrelative to the defense. This Court held providing that law was reversible error in theabsence of “interpretation” that would aid the jury in applying it to the facts. Id. at549, 506 P.2d at 761. “It is error not to include sufficient explanatory language in aninstruction so that the jury may be able intelligently to interpret its meaning andapplicability.” Id. See also People v. Ambrose, 907 P.2d 613, 616 (Colo. App. 1994) (in atheft case an instruction following statutory law concerning the relationship betweencriminal and civil liability was irrelevant and may have misled jurors).D. Application. This was not an ethics case. The only question for jurors was whether Ms.Cohen committed theft, and the only law that applied was the criminal law. By presenting a summary of the RPC immediately before the elements oftheft—or anywhere in the jury instructions—the district court conflated the ethicalrules with the criminal law. That is precisely the error that required reversal inMahoney, 908 A.2d at 173-74. There as here, the defendant was an attorney accused ofstealing client funds. There as here, jurors were provided the rules regarding trustaccounts and recordkeeping. There as here, jurors received no guidance from thecourt regarding how the rules could be considered. The only difference is that in 35
Mahoney the rules were merely admitted into evidence; here the district court includedthem as statements of law jurors had to apply. To an even greater extent than inMahoney, this carried “the certain risk that the jury would conflate the Rule’srequirements with those necessary for the imputation of criminal liability …” Id. at174. See also Stein, 156 Cal. Rptr. at 301-02. The problem with the instructions was obvious. The model criminal juryinstructions contain no reference to attorney ethical obligations. Additionally, therules upon which instruction 11 were based expressly state that: (1) a violation shouldnot create a presumption that a legal duty has been breached, (2) the rules are notdesigned to be a basis for civil liability, and (3) the rules are not intended to be“invoked by opposing parties as procedural weapons.” Colo. RPC Preamble, ¶20.Those portions of the RPC were not provided to jurors. It was also obvious that jurors should not have been instructed on abstractprinciples of law. See Alexander, 663 P.2d at 1032. Even had some instructionregarding ethical principles been appropriate, which it was not, providing an extensivesummary of the ethical rules without any guidance regarding their application waserror. As in McMartin, jurors received technical information without any explanatorylanguage on how to interpret its meaning or applicability. 31 Colo. App. at 549, 506P.2d at 761; see also Ambrose, 907 P.2d at 616. 36
There is more than a “reasonable possibility” that jury instruction 11contributed to Ms. Cohen’s conviction. See Auman, 109 P.3d at 665. It was includedamong the “rules of law you must apply to reach your verdict.” (R. Supr., p.213(emphasis added)) Jurors were required to apply the evidence to it in some fashion.See Kaufman, 202 P.3d at 562. Confirming this, jurors asked two deliberation questionsabout the professional conduct evidence, and specifically inquired how instruction 11applied to the elements of theft. (R. Supr. pp.209-10) In the context of a theft case, the only rational way instruction 11 could haveapplied to the evidence was equating ethical violations with criminal liability. Steinrecognized this. 156 Cal. Rptr. at 302. The role of evaluating whether an ethicalviolation has occurred, however, belongs solely to OARC and the PresidingDisciplinary Judge, not criminal juries. Even if jurors could have been tasked withfinding an ethical violation, ethical violations do not create a presumption thatanother legal duty has been breached. Colo. RPC Preamble, ¶20. It was misleadingand confusing for the district court to ask jurors to resolve an issue they had noauthority or need to resolve. See Silva, 987 P.2d at 915. Instruction 11 impermissibly emphasized the OARC related evidence. SeeEllsworth, 15 P.3d at 1116. This case should not have been more complicated than anyother alleged theft by a service provider. The State nevertheless called numerous 37
witnesses, over objection, to testify regarding attorney ethical obligations and Ms.Cohen’s alleged breaches. (R. Tr. 12/02/14, p.498; R. Tr. 12/03/14, pp.702-40)Additionally, it admitted the three complaints addressed in section I. Instruction 11placed a judicial endorsement on the State’s witnesses’ testimony concerning whatethical rules applied, and required jurors to credit that testimony in their deliberations.It also elevated the importance of the complaints. The error of providing instruction 11 was exacerbated by defining “victim” asanyone against whom a crime has been attempted, “as crime is defined under the lawsof this state …” (R. Supr. p.231) The prosecution told jurors that instruction 11“explains to you what the law is.” (R. Tr. 12/11/14, p.2199) All the jury instructionshelped define whether a crime had been committed; that is why they were provided ina criminal case. The instructions thus indicated that if Ms. Cohen even attempted tocommit an ethical violation against one of her clients, that client was the victim of acrime. Much of the State’s evidence focused on proving alleged ethical violations. (R.Tr. 12/03/14, pp.715-38; R. Tr. 12/09/14, pp.1587-91) This conflated professionaland criminal wrongdoing, and lowered the State’s burden of proving the elements oftheft beyond a reasonable doubt. See Stein, 156 Cal. Rptr. at 302; Mahoney, 908 A.2d at174. 38
This was a theft case governed by the elements of theft. By injecting rules thatwere never intended to define crimes, the district court allowed jurors to find criminalliability on the basis of alleged ethical misconduct. This Court should thus reverseMs. Cohen’s convictions.III. The district court erred by allowing another attorney to testify regardingevery time she believed Ms. Cohen had lied or engaged in questionablebehavior in the past.A. Standard of review. Ms. Cohen preserved this issue by contemporaneous objection, but wasoverruled. (R. Tr. 12/09/14, pp.1672-73, 1678-82) This Court generally reviews a trial court’s evidentiary decisions for an abuse ofdiscretion, and applies the harmless error standard. See, e.g., Veren, 140 P.3d at 136.Reversal is required under that standard if there is a reasonable probability that theerroneously admitted evidence contributed to the conviction. People v. Harris, 2015COA 53, ¶26. Ms. Cohen nevertheless urges this Court to apply the constitutional harmlesserror standard because the trial court’s erroneous evidentiary ruling impinged uponher right to a fair trial by an impartial jury, as guaranteed by the Sixth Amendment andArticle II, sections sixteen and twenty-three of the Colorado Constitution. See, e.g.,Domingo-Gomez, 125 P.3d at 1048. The admission of bad character evidence may 39
deprive a defendant of a fair opportunity to defend against a charge. Michelson v.United States, 335 U.S. 469, 475-76 (1948).B. Applicable facts. The State called Christina Fiflis, an experienced immigration attorney who hadworked with Ms. Cohen on several cases. (R. Tr. 12/09/14, pp.1621, 1626-36) Shetestified on direct that she stopped working with Ms. Cohen because there had beensome “red flags” from the first case they handled together. (Id. at 1631-32) Followingcross-examination, a juror asked if Ms. Fiflis had observed additional red flags. (Id. at1678) Ms. Cohen objected that the answer would call for character evidence; theprosecution responded she had mentioned this on cross, and was entitled to explain it.(Id. at 1672-73) The district court agreed with the prosecution’s representation. (Id.)What ensued was a five-page narrative apparently listing every negative thought Ms.Fiflis had ever had about Ms. Cohen, including: - Ms. Cohen had not been honest in a statement she drafted documenting a client’s child’s medical problems. (Id. at 1678-79) - She missed a critical client phone call because her phone was broken and “there was other things going on.” Although the testimony is unclear, the “other things” appear to have been Ms. Cohen spending “the whole 40
night at the ER because the baby hit her head on something.” (Id. at 1680-81) - Regarding a factual narrative in another case, Ms. Fiflis had to tell Ms. Cohen “not to filter, distort or embellish the facts that were good or bad … and that embellishment that I had observed in the narrative was very concerning to me.” (Id. at 1681-82) - Ms. Cohen was “very concerned that I thought she was a bad person, and I thought that was a very alarming kind of question.” (Id. at 1682) The State rested its case shortly after Ms. Fiflis’s narrative. (R. Tr. 12/09/14,pp.1687)C. Applicable law. The law explained in sections I(C)(iii) and I(C)(iv), regarding evidence of otheracts and testimony concerning truthfulness, applies here.D. Application. Whether characterized as evidence of other acts or evidence of untruthfulness,Ms. Fiflis’s narrative was inadmissible. Contrary to the prosecutor’s representation,she was not entitled to “explain” her brief reference in direct examination. (R. Tr.12/09/14, pp.1672-73) Ms. Fiflis’s testimony was improper evidence of other actsunder CRE 404(b) because it was neither offered for nor relevant to anything other 41
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