Beruflich Dokumente
Kultur Dokumente
Detective Crider told Rogers that people had told the police
that they saw Rogers with A.F.-C. over the weekend, and police
officers had seen him driving his girlfriends car before he was
arrested. Detective Crider also said that it was surprising that
Rogers was homeless because his appearance did not give that
impression. Rogers maintained his denials.
Detective Crider asked Rogers why he was lying about driving
his girlfriends car, and what else he had lied about. The detective
then said, If youre going to lie about that, it doesnt look good for
you. Why are you lying about that? And then, are you lying about
[A.F.-C.]? Detective Crider also accused Rogers of lying about
being homeless, going to shelters to eat, and selling drugs, and told
him to just be honest about whether he was with A.F.-C. and
whether she was selling drugs for him. At several other points
during the interview, Detective Crider told Rogers to just be
honest or tell the truth about being in Colorado Springs, and said
that he did not believe him.
About an hour and fifteen minutes into the interview, at
around 11:59 p.m., Detective Crider asked Rogers whether he
wanted to continue talking, and it sounds like Rogers said that he
5
The detectives then told Rogers that his DNA matched semen
found in C.K.s mouth. Rogers again denied knowing C.K. and said
that he had never seen her before. One of the detectives responded
that that was really hard to believe.
The detectives also implied that Rogers was not being truthful
in response to questions about an apartment that they believed was
his. The detectives told Rogers that his answers about the
apartment were relevant because they needed to determine whether
he was telling them the truth. They said that if he was not being
truthful with them about anything, how could he expect them to
believe him when he said that he did not know C.K.
One of the detectives made a similar statement in response to
Rogers repeated assertions that he did not know why his semen
was in C.K.s mouth. The detective said that science doesnt lie,
and there is only one way [your] semen could have ended up in her
mouth. So for you to say I dont know how or I dont know why, its
not a legitimate answer, its not the truth. Other statements by the
detectives included telling Rogers, in response to his answers about
various matters, that they just wanted him to be truthful.
11
13
14
1999); see also Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986)
([T]he privilege against compulsory self-incrimination is . . . a
personal one that can only be invoked by the individual whose
testimony is being compelled.).
Regarding the third and fourth Mosley factors, the police gave
Rogers a fresh set of Miranda warnings before Interview 3, and they
restricted the subject of Interview 3 to the murder of C.K. Although
Rogers mentioned A.F.-C. (the subject of Interview 1) several times,
the detectives responded that they were there to discuss C.K., not
A.F.-C. The circumstances of Interview 3 therefore demonstrated
that the police intended to honor Rogers earlier decision to refuse
to continue answering questions about A.F.-C.s murder. See
Mosley, 423 U.S. at 105.
Accordingly, Interview 3 was consistent with the police
scrupulously honoring Rogers right to remain silent, and the trial
court did not err in denying his motion to suppress the statements
he made during that interview.
C. Officers Statements about Rogers Credibility
Although CRE 402 provides that relevant evidence is generally
admissible, specific evidentiary rules limit the admissibility of
18
19
20
21
precedent, People v. Gladney, 250 P.3d 762, 768 n.3 (Colo. App.
2010), and so we must follow Davis.
Rogers also argues that Davis is distinguishable because the
detectives in this case did not testify that the statements they made
during the interviews were an interviewing technique. We disagree.
Like in Davis, the statements at issue were not offered for the
purpose of giving opinion testimony on Rogers credibility at trial,
see Davis, 17, but rather to provide context for his answers to the
detectives questions during the interviews, see id. at 21. Davis
thus permitted their admission.
Accordingly, the trial court did not abuse its discretion in
admitting the statements the detectives made about Rogers
credibility during Interview 1 and Interview 3.
III. Motion to Sever and Other Acts Evidence
Rogers argues that the trial court erred in (1) denying his
motion to sever the three counts because he contends that evidence
of each offense was not admissible regarding the other two offenses;
and (2) admitting other acts and res gestae evidence on his drug
dealing, his assaults and threats against and search for the victims,
22
Yusem v. People, 210 P.3d 458, 463 (Colo. 2009); Gross, 39 P.3d at
1282.
The Colorado Supreme Court has prescribed a four-part
analysis to determine whether evidence of other acts is admissible
under CRE 404(b). Spoto, 795 P.2d at 1318; see also Kaufman v.
People, 202 P.3d 542, 552 (Colo. 2009). To be admissible under
CRE 404(b), (1) other acts evidence must relate to a material fact,
that is, a fact that is of consequence to the determination of the
action; (2) it must be logically relevant, meaning it has any tendency
to make the existence of the material fact more probable or less
probable than it would be without the evidence; (3) the logical
relevance must be independent of the prohibited intermediate
inference that the defendant committed the crime charged because
of the likelihood that he acted in conformity with his bad character;
and (4) the probative value of the evidence must substantially
outweigh the danger of unfair prejudice. Yusem, 210 P.3d at 463
(citing Spoto, 795 P.2d at 1318; CRE 401, CRE 403).
Regarding the fourth prong, a reviewing court must assume
the maximum probative value a reasonable fact finder might give
the evidence and the minimum unfair prejudice to be reasonably
25
28
We also agree with the trial court that the probative value of
the evidence substantially outweighed the danger of unfair
prejudice: the striking similarities in both the commission of the
acts and Rogers relationship to each victim has obvious probative
value. The same facts also reduced any tendency of the evidence to
encourage the jury to make a decision on an improper basis. See
People v. Cousins, 181 P.3d 365, 369, 372 (Colo. App. 2007)
(defining unfair prejudice).
Accordingly, the trial court did not abuse its discretion in
denying Rogers motion to sever.
2. Other Acts and Res Gestae Evidence
a. Additional Facts
Most of the other acts and res gestae evidence admitted at trial
that Rogers challenges on appeal relates to evidence of his drug
dealing and interactions with the victims.
Witnesses testified that during the relevant time period in
2009, Rogers was a drug dealer and the three victims were addicts
who owed him money. Witness testimony further established that
A.F.-C. and C.K. sold drugs for Rogers in exchange for him allowing
them to keep for their own use some of the crack cocaine he gave
29
them to sell. Evidence was also introduced that police found a bag
of crack cocaine in Rogers apartment.
Testimony specifically regarding A.F.-C. showed that around
two weeks before her death, her friend overheard Rogers telling
another man that he was angry with her because she had run off
with two ounces of his crack, worth about $1500. The night before
A.F.-C.s body was found, A.F.-C. was seen selling drugs on the
street and Rogers was seen nearby. Rogers was heard arguing with
A.F.-C. and threatening her because she owed him money, and two
witnesses saw him hit her.
Additionally, at some time before that night, Rogers had been
looking for A.F.-C., her friend, and another woman who owed him
money, and he went to an apartment where he had heard A.F.-C. or
the other women were staying. Before Rogers got to the apartment,
he told his associate that A.F.-C. was going to pay, and he took a
loaded 9 mm gun with him to the apartment, saying that he was
going up there to get [A.F.-C.s friend] or [A.F.-C.]. His associate
left when they got to the apartment and he did not know what
happened after he left, but he testified that he never saw A.F.-C.
again.
30
Two days before A.F.-C.s body was found, the other woman
who owed Rogers money was at the same apartment when Rogers
showed up. At the apartment, she overheard Rogers telling the
man with whom she was staying that he was looking for her,
A.F.-C., and A.F.-C.s friend because they owed him money.
And, the day after A.F.-C.s body was found, Rogers drove up
to A.F.-C.s friend in a car and told her, through the open window,
Bitch you need to stop playing with my money or you are going to
end up like [A.F.-C.].
Testimony specifically regarding C.K. showed that some day
right before she was killed, Rogers asked a friend of hers if she had
seen her, and her friend told him where she had seen C.K. about
fifteen to thirty minutes earlier. She testified that Rogers seemed
upset, and he told her that C.K. had disappeared with some crack
cocaine that she was supposed to sell for him. She did not see C.K.
again after that.
Also, at some time near when she died, C.K. was at an
apartment with some other people when Rogers showed up; taken
together, several witnesses testimony suggested that he may have
come to the apartment because he had heard that she was there.
31
Rogers asked C.K. where she had been, and she said that she was
sorry and that she would make up the t-shirt (a unit of crack
cocaine). Rogers told C.K. that she was coming with him and
grabbed her arm. C.K. then left with Rogers.
Testimony specifically regarding R.C. showed that the month
he died, a witness saw Rogers confront R.C. when R.C. was on a
bicycle. Rogers grabbed the bike, and R.C. dropped it. The witness
told police that Rogers beat R.C. while asking R.C. when he was
going to pay Rogers his money.
The other evidence admitted at trial that Rogers challenges on
appeal relates to the Aurora shooting incident in which it was
alleged that Rogers fired the same gun used in the three Denver
murders. The victims (two sisters) of the shooting testified that they
had gone to a Waffle House (sometimes described incorrectly in the
record as an IHOP) late one night in April 2009. At the Waffle
House, they got into an altercation with a group of people, one of
whom they later identified as Rogers. One of them testified that the
man they identified as Rogers threw her into a window and
punched her sister in the eye.
32
They testified that after the fight, they saw Rogers group get
into a vehicle and drive away. One of the sisters called 911, and the
911 dispatcher asked her for the license plate of the vehicle. She
testified that because she could not see the plate, she decided to
follow the vehicle in her own car.
She testified that she followed the other vehicle for several
minutes until it pulled into the parking lot of an apartment
complex. She also pulled into the parking lot and stopped her car.
She testified that she saw a man, who she later identified as Rogers,
get out of the vehicle and go up to the trunk of a parked car. Her
sister, who was in the car with her, testified that the same man,
who she also later identified as Rogers, pulled an object out of the
back of the car.
The women testified that the man turned or started walking
toward their car and fired a gun at them. One of them described
the gun as a black .45 or 9 mm and testified that he fired at least
four shots at them before they were able to drive away. Neither
woman was shot.
Several minutes later, police pulled Rogers vehicle over a few
miles from the apartment complex. The police officers involved
33
testified that they arrested Rogers, and the victims identified him as
the shooter. The officers testified that they found and collected two
9 mm firearm casings in the parking lot of the apartment complex,
and they learned that the parked car Rogers approached belonged
to his girlfriend at the time who lived in the complex. The firearms
expert involved in this case testified that the recovered casings were
fired from the same weapon as that used in the three murders at
issue here.
A witness who was married to a man she described as Rogers
best friend testified that she overheard Rogers talking to her
husband about the shooting incident. She told the police that she
heard Rogers say he had had a gun and shot at some girls, and that
the police did not get the gun.
Throughout the testimony of the witnesses described above,
the trial court gave contemporaneous limiting instructions before
and during the testimony. The limiting instruction given during
testimony about Rogers drug dealing and assaults against the
victims instructed the jury that certain evidence may be admitted
for a particular purpose only and for no other, and that the
witnesses testimony could be used as evidence for the purpose of
34
35
36
falling under each category was admissible either under CRE 404(b)
or as res gestae.
Res gestae evidence is [e]vidence of other offenses or acts that
is not extrinsic to the offense charged, but rather, is part of the
criminal episode or transaction with which the defendant is
charged. People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994). It
is linked in time and circumstances with the charged crime, forms
an integral and natural part of an account of a crime, or is
necessary to complete the story of the crime for the jury. People v.
Miranda, 2014 COA 102, 47 (citation omitted) (cert. granted on
other grounds Aug. 31, 2015). Thus, while CRE 404(b) evidence is
independent from the charged offense, res gestae evidence is linked
to the offense. Quintana, 882 P.2d at 1373 n.12.
Res gestae evidence is admissible so long as it is relevant and
its probative value is not substantially outweighed by the danger of
unfair prejudice. People v. Czemerynski, 786 P.2d 1100, 1109
(Colo. 1990).
We review a trial courts decision to admit evidence of other
acts for an abuse of discretion. Yusem, 210 P.3d at 463. We
37
conclude that the trial court did not abuse its discretion in
admitting the evidence detailed above.
First, regarding the evidence of Rogers drug dealing and his
relationship to the victims (that he knew them because they sold
drugs for him), the trial court concluded that the evidence was
admissible as other acts evidence under CRE 404(b). The court
determined that the evidence was related to the material facts of
opportunity, identity, mental state, motive, and common scheme,
and, specifically, that it was relevant because it established that
Rogers knew the victims and if he knew them it made it more
likely that he killed them and had a motive to kill them (their
drug debts).
We agree with the trial court that the drug dealing evidence
met the four-prong test for admissibility of other acts evidence
under CRE 404(b). As the trial court explained, the case was
centered on drug dealing and usage and it would have been
impossible to meaningfully try the case without admitting evidence
of the context in which Rogers knew the victims. Moreover, the
prosecutions theory of the case was that Rogers motive for the
murders also involved drug dealing. The evidence thus was used
38
Rogers to use violence to collect his debts. The court explained that
evidence of Rogers escalating violence makes it more likely that he
committed the murders because it is more likely that he was willing
to shoot someone if he was willing to assault him or her, and if
there had been a dispute between them that had led to violence in
the past.
We agree with the trial court that evidence of the assaults
against the victims was material and relevant to establish identity
and motive. That Rogers previously used violence against two of the
victims makes it more likely that he was the one who used deadly
violence against them. And evidence of his motive for assaulting
them drug debts makes it more likely that he had the same
motive for killing them. The logical relevance of this evidence is
independent of the prohibited propensity inference; the evidence
was offered not to show that Rogers was a bad person and thus
likely killed the victims but rather to show that he had acted
violently toward the victims in the past for the same reason he
allegedly killed them. For the same reason, the probative value of
the evidence is not substantially outweighed by the danger of unfair
prejudice. And again, the court correctly gave the jury a limiting
40
41
42
46