People v. Gutierrez

499 P.3d 367

2021 COA 110

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Andrew George GUTIERREZ, Defendant-Appellant.

Court of Appeals No. 17CA0534

Colorado Court of Appeals, Division IV.

Announced August 19, 2021

Rehearing Denied September 30, 2021

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUSTICE MARTINEZ*

¶ 1 After a two-week trial, a jury found defendant, Andrew George Gutierrez, and his codefendant, John Orlando Sanchez, guilty of first degree murder and conspiracy to commit murder. The defendants were tried jointly, despite numerous pretrial motions to sever. At trial, the prosecution introduced evidence that the victim, Eric Schnaare, was fatally shot four times with bullets from one gun. Both defendants and the prosecution regarded this evidence, considered with the other evidence in the case, as conclusively proving that there was one shooter. Gutierrez denied shooting Schnaare and accused Sanchez of being the sole shooter, and Sanchez similarly denied being the shooter and accused Gutierrez.

¶ 2 In this case, we conclude that Gutierrez's defense was antagonistic to Sanchez's because the two defenses specifically contradicted each other and to believe one defense meant that a jury would have to disbelieve the other. We further conclude that the joint proceedings in this case resulted in reversible prejudice because the trial saw the introduction of voluminous evidence that would likely not have been admissible in a separate trial — and also required numerous limiting instructions — and a great deal of damaging evidence introduced not by the prosecution but by the codefendant. The trial court erred by denying Gutierrez's motions for severance, so we reverse his convictions and remand for a new, separate trial.

I. Background

¶ 3 From the evening of May 13, 2015, through the early morning of May 14, a group was partying at an apartment in Lakewood. The group included codefendants Gutierrez and Sanchez and their families, significant others, and friends. The defendants were affiliated with the gang "Gallant Knights Insane" or "the GKIs." There was some evidence that Gutierrez was the leader of the GKIs.

¶ 4 The defendants brought guns with them to the party. Not long after 6 a.m. on May 14, the victim — Schnaare — arrived at the apartment. Upon entering, Schnaare was fatally shot four times. After the shooting, the partygoers fled the scene.

¶ 5 Prior to the party, the Lakewood police had installed a pole camera outside the apartment as part of an unrelated investigation. Through pole camera footage, the police identified the partygoers, including the defendants. After the shooting, Gutierrez went to a motel with Sanchez's former girlfriend, Amelia Irizarry. Sanchez, meanwhile, traded one of his guns for another, which he and Irizarry later hid when they were arrested. Gutierrez was arrested at the motel after a standoff with the Lakewood police.

¶ 6 Based on the above, Gutierrez and Sanchez were charged with first degree murder and conspiracy to commit murder. Ultimately, the prosecutors argued that the jury could find "either one of these defendants guilty, either as a principal or as a complicitor."

¶ 7 Gutierrez and Sanchez were tried jointly. After a two-week trial, the jury found both defendants guilty as charged. Gutierrez was sentenced to life without parole. This appeal followed.

II. Severance and Joinder

¶ 8 Gutierrez contends, among other things, that the trial court abused its discretion by repeatedly denying his motions to sever his trial from Sanchez's.¹ Specifically, Gutierrez argues that he presented a mutually exclusive, antagonistic defense to Sanchez's, and, as a result, he suffered reversible prejudice from a joint proceeding. We agree.

A. Relevant Principles

¶ 9 When severance is not mandatory under section 16-7-101, C.R.S. 2020, the matter is addressed to the trial court's discretion. Peltz v. People , 728 P.2d 1271, 1275 (Colo. 1986). We will not disturb a court's ruling denying severance absent an abuse of that discretion and a showing of prejudice to the moving party. Id.

¶ 10 Factors that a court may consider when ruling on a motion to sever that does not trigger mandatory severance include (1) whether the number of defendants or the complexity of the evidence will cause the jury to confuse the evidence and law applicable to each defendant; (2) whether, despite limiting instructions, evidence admissible against one defendant will improperly be considered against another; and (3) whether the defenses presented are antagonistic. People v. Carrillo , 946 P.2d 544, 550-51 (Colo. App. 1997), aff'd on other grounds , 974 P.2d 478 (Colo. 1999).

¶ 11 Although courts around the country disagree regarding "the amount of antagonism sufficient to require separate trials," People v. Maass , 981 P.2d 177, 184 (Colo. App. 1998), Colorado case law makes clear that defenses are not antagonistic when one defendant does not base their assertion of innocence on the guilt of the other. Id. ; see also People v. Toomer , 43 Colo. App. 182, 185, 604 P.2d 1180, 1183 (1979) (holding that defenses are not antagonistic when they do not specifically contradict each other); United States v. McClure , 734 F.2d 484, 488 (10th Cir. 1984) ("[O]ne defendant's attempt to cast blame on the other is not in itself a sufficient reason to require separate trials."). On the other hand, mutually exclusive or "irreconcilable defenses" could require severance. Maass , 981 P.2d at 184. That is, "the acceptance of one defense would tend to preclude the acquittal of the other defendant." Id.

B. Additional Facts and Procedural History

¶ 12 Gutierrez's counsel moved pretrial to sever the cases, arguing, among other things, that the defendants would be raising mutually exclusive and antagonistic defenses. The prosecution filed a written response arguing that a joint trial would serve judicial economy and that separate trials would risk inconsistent verdicts. At a March 2016 hearing, the court found that the motion was premature because the parties had not yet presented their theories of defense. The court opined, however, that even if the parties did raise antagonistic defenses, limiting instructions would cure any prejudice.

¶ 13 After subsequent discovery revealed that there was only one shooter, Gutierrez's counsel filed a renewed motion for severance. At a hearing on the renewed motion, Gutierrez's counsel argued that it was clear, now, that the defendants would be accusing each other of being the sole shooter — thus, the defendants would be prosecuted not only by the State, but also by each other. The court denied severance on the grounds that any prejudice could be cured with limiting instructions.

¶ 14 Between this hearing and the trial, the parties deposed John Paulin, the man who owned the apartment where the shooting took place. Prior to the deposition, Sanchez's counsel expressed concern that the prosecution would elicit a hearsay statement made by Gutierrez to Paulin that would implicate both defendants in the shooting. Because Gutierrez was the declarant, Sanchez's counsel argued that he should be able to impeach Gutierrez's statement by introducing his prior felony convictions. Later in the deposition, Gutierrez's counsel agreed with Sanchez's counsel and added, "I believe that ... will force Mr. Gutierrez to make a choice between his constitutional rights, his right to a fair trial, as well as his right to remain silent, and his right to confront." Gutierrez's counsel then renewed their motion to sever, which was denied.

¶ 15 At a later hearing, the parties re-raised this issue. Both defendants’ counsel explained that they were being placed in the untenable position of having to choose between fully confronting Paulin, or any other witness, and saving their respective clients from the prejudice of having the codefendant's counsel impeach on prior felony convictions. Thus, both Gutierrez and Sanchez moved to sever, which was again denied.

¶ 16 At the end of the hearing, prior to jury selection, the trial court gave the prosecution fifteen peremptory challenges, Sanchez eight, and Gutierrez seven. Later, during jury selection, Gutierrez's counsel argued that Gutierrez suffered prejudice because he had received fewer peremptory challenges than he would have received at a separate trial, and exhausted them before he could strike a juror who expressed a fear of retaliation from gang members. Gutierrez's counsel made a record that she would have struck the juror had she been allowed to and, further, Gutierrez would have received more peremptory challenges had he been given a separate trial.

¶ 17 In her opening statement, Gutierrez's counsel began by arguing,

Four bullets from one gun, shot by one person. That person was not Andrew Gutierrez. And Andrew Gutierrez was not an accomplice to the shooting and the murder of Eric Schnaare.

Counsel then asked, "So what happened?" What happened, counsel later argued, was "John Sanchez [walked] in the door after Mr. Schnaare. And he immediately ... starts shooting at Mr. Schnaare: 1, 2, 3, 4 shots, shoots Mr. Schnaare dead." Then, in his opening statement, Sanchez's counsel argued,

[I]f you look at the evidence in this case, you're going to see that John Sanchez didn't shoot anyone. If you listen to all the evidence in this case, you're going to see that the DA's theory that there was a complicity going on here and there was some sort of agreement or conspiracy isn't true. You will see that the shooter was Andrew Gutierrez.

Sanchez's counsel then reiterated, "There [are] not two shooters, there is one shooter, and evidence shows it's not Mr. Sanchez."

¶ 18 After opening statements, Sanchez's counsel again moved for severance, arguing,

[A]fter [having] now heard

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