What might have been a precedent-setting decision in Colorado criminal case law instead became a ruling on harmless error, as the Colorado Supreme Court affirmed a conviction in Pernell v. People.
Originally the Supreme Court sought to address in Pernell whether a defendant’s opening statement could “open the door” to otherwise inadmissible hearsay evidence.
In the case’s trial, the defendant opened by arguing that the alleged victim made up the incident in question.
The Colorado Court of Appeals held that certain out-of-court statements that emerged in testimony then became admissible because they rehabilitated the alleged victim’s credibility in light of the opening statement.
That question of admissibility would have been a matter of first impression had the Supreme Court ultimately opined on it.
But having reviewed the trial court record, the court changed its mind and decided it wouldn’t need to decide on that issue, given the overwhelming evidence pointing to the defendant’s guilt.
In the opinion published Feb. 20, the court affirmed Christopher Pernell’s conviction, holding that the statements were “harmless because there is no reasonable possibility that the admission of these statements contributed to the defendant’s conviction.”
The case centered around an incident in which Pernell, armed with a handgun, entered his ex-wife’s house one night unannounced while her boyfriend was with her.
Pernell threatened the boyfriend, who then left the house, and Pernell forced his ex-wife into sex and stopped her when she tried to flee. A jury convicted Pernell of several charges including burglary, kidnapping and sexual assault.
During the trial, the defense counsel argued during opening statement that the whole event was a fabrication by the ex-wife and her boyfriend. When the police officer witness would later testify, he described the ex-wife’s account of the incident, and the defense objected to that description as inadmissible hearsay.
The trial court admitted those statements, however, as excited utterances. An excited utterance, or a statement a witness makes while still under the stress of a startling incident, isn’t precluded by the rule against hearsay.
The Court of Appeals ruled that the trial court erred in admitting the ex-wife’s out-of-court statements.
It held that they didn’t qualify as excited utterances, as the ex-wife related them to the officer 12 hours after the incident.
But the appellate court nonetheless found their admission to be harmless. The defendant had “attacked” the alleged victim’s credibility by arguing that her account was a fabrication, and the “excited utterances” were still admissible as prior consistent statements to rehabilitate her credibility, the appellate court held.
That ruling gave rise to the matter before the Supreme Court, which was whether the ex-wife’s out-of-court statements could be admissible to defend a witness’s credibility when it suffers an “attack” in the opening statement.
Like the lower court, the Supreme Court found the hearsay harmless, albeit for an entirely different reason.
The record contained “overwhelming” evidence pointing to the defendant’s guilt, so admitting the out-of-court statements couldn’t have swayed the trial’s outcome, the court held.
According to the opinion, Pernell argued that opening statements aren’t evidence and can’t open the door to otherwise inadmissible hearsay.
Pernell also argued that the out-of-court statements weren’t harmless because the ex-wife’s credibility was “essential” to the prosecution’s case, and admitting the statements “unfairly bolstered” that credibility.
But looking at the record before it, the court found that the strength of the prosecution’s case against Pernell made the out-of-court statements analysis a moot point.
“We have never reduced the question of a trial error’s prejudicial impact to a specific set of factors,” according to the opinion penned by Justice Monica Márquez. “That said, we have indicated that the strength of the properly admitted evidence supporting the guilty verdict is clearly an ‘important consideration’ in the harmless error analysis.”
The court noted that Pernell presented no testimony or evidence at the trial and that there was “overwhelming, properly admitted evidence of Pernell’s guilt.”
The prosecution’s evidence included photographs of the ex-wife’s injuries, as well as Pernell’s phone conversation with her the day after the incident in which he acknowledged he’d threatened to kill her and had forced her into sex.
“Under these circumstances, we conclude there is no reasonable possibility that the admission of the ex-wife’s out-of-court statements compromised the jury’s ability to independently evaluate the ex-wife’s credibility,” the court held.
— Doug Chartier