Opposition Brief — Francisco R. Quintana, Petitioner v. Colorado

No. 18-6728

Sn the Supreme Court of the Anited States

FRANCISCO R. QUINTANA,

Petitioner,

Vv.

COLORADO,

Respondent.

On Petition for Writ of Certiorari to

The Colorado Supreme Court

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

PHILIP J. WEISER L. ANDREW COOPER

Attorney General Deputy Attorney General

Counsel of Record

ERIC OLSON JOSEPH G. MICHAELS

Solicitor General Senior Assistant Attorney General

Colorado Department of Law

Ralph L. Carr Judicial Center

1300 Broadway, 10th Floor

Denver, CO 80203

andrew.cooper@coag.gov

(720) 508-6465

Counsel for Respondent

QUESTION PRESENTED

When a judge in a criminal trial rules that the defense cannot ask a witness a

particular question, that ruling—even if erroneous under the law of evidence—does

not necessarily violate the defendant’s constitutional right to present a defense, and

does not necessarily require reversal of a conviction. Violation of the constitutional

right, and reversal, are only required if the excluded defense would have been

favorable and “material” in ways that are “not merely cumulative” to the testimony

that was admitted. United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982).

Here, Petitioner argued in Colorado’s state courts that his claim had satisfied

this materiality standard, but he never argued that Colorado was failing to

recognize the standard, and did not otherwise argue that Colorado was operating

under an incorrect analytical framework. Nonetheless, he now argues—for the first

time in his Petition to this Court—that an earlier Colorado decision, Krutsinger v.

People, 219 P.3d 1054 (Colo. 2009), departed from this Court’s standard. Actually,

Colorado follows this Court’s standard, as do other jurisdictions around the country.

The question presented is therefore as follows:

Whether this Court should grant review of a proposed

certiorari question that Petitioner did not raise in

Colorado’s courts, especially where Colorado has long

followed the applicable standard announced by this Court.

TABLE OF CONTENTS

QUESTION PRESENTED sdsssesvssamassanccireaemmnerunasiecenannnnnenenn sAannnnTaED exemnennKe one 1

STATEMENT OF THE CASE Qu... ccccecccecececeeeeeeeeeseneeceeeeceeeeeseeeesenneeceuaneeseeeeeteeesaes 1

REASONS FOR DENYING THE PETITION ............ccceeceeeeeceeeeeeeeeeeeeeereeenenneneeeeeees 3

I. This case is an inappropriate vehicle for addressing the Question

Presented. .......cepeeceosesensssessiieniasiaienbasanciss Gagne Ulaateweead snd CISCCAZ SSN IRAs RU Se Maa aeaSp NEReE 4

A. Petitioner’s Question Presented was never presented below. ........... 4

B. This Court denied certiorari in Krutsinger, the Colorado case that

Petitioner attack Spsssissscwscacesemessasve@eaieeeecngeed 01+ -0--scee cen eeeeeeeeeeneceeneventeeees 6

II. This Court long ago articulated the materiality harmlessness standard for

review Of constitutional CYYOLS............ccssseeeseeeeceeeeeceeeeeeeeeeeeeeeeaeeeeeeeeseeeeeeeaaeenes 7

A. Petitioner is incorrect when he suggests this Court has not adopted

; a materiality standard. ..............::::::ceecceeeeeeeeeeeeeeeteeeeesesenseetereeererseseeenes 7

B. Colorado follows this Court’s standard. ............ccceeceeseeeeeeeeeeeeneeeeeeeees 12

III. Any divergence among jurisdictions is not a true split; Petitioner is

selectively quoting from cases and ignoring the courts’ actual rulings. .... 19

A. The jurisdictions that Petitioner says “import” a materiality

requirement are simply following Valenzuela-Bernal................:00- 19

B. Petitioner is misreading the cases he cites from his favored

JUTISCICEION S caasssanesansamaesencncsnecnneneccanennnisiesioneeneee URKENARSAR mEREMNSOMORNNN ENE 20

CONCLUSION ..... noscnssessssaasvanqaasanscnenugenesestesquaueezauscvenucebieuinnnras Sgiaaicannesuaseimeseicasesaece 25

ra

TABLE OF AUTHORITIES

CASES

Brady v. Maryland, 373 U.S. 83 (1963) sssseosssamsrnemenaeercsemamernnmenonrenemmnnunnmnteosennmennnes 19

Carsell v. Edwards, 165 Colo. 335 (1968) cissscssssivanscssivevaancasars cwssscsesiancwisccsucsuescunenes 14

Chapman v. California, 386 U.S. 18 (1967) sssccssessnsnnnnoessnnencenansneeenunrenennees 6, 8, 21, 24

Crane v. Kentucky, 476 U.S. 683 (1986) ....... sssessssscssnncseassesvecsuseopasuansseavaensoivevenns passim

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ..........scsssveconnnatessnesnsvossnenenenneesssss- 17, 18

Gov't of Virgin Islands v. Mills, 956 F.2d 443 (8d Cir. 1992) .........cccceeeeseeteeeeneetees 19

Harris v. Thompson, 698 F.3d 609 (7th Cir. 2012) ..ccssscccccccsssessseseveesteeccesenetesessenseees 19

Heath v. United States, 26 A.3d 266 (D.C. 2011) 20... cececeececeeeenteeeereeeeeeeeeeeeeneeeeeeenes 19

Krutsinger v. Colorado, 559 U.S. 1049 (2010)................cssssssesssceasecamsanvsnnasasnaentonenans 4,6

Krutsinger v. People, 219 P.3d 1054 (Colo. 2009)..........ccccccceeesseeeeesteeeteteeeeeteeeens passim

MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007)........cecceccccsecceeeceeeeeeestentaaeeeees 6

Olden v. Kentucky, 488 U.S. 227 (1988) ..........ccccseeeeeseecceeeeereeeeteeteteneeeteeaeeeeeeereeenees 8, 18

Patton v. Mullin, 425 F.3d 788 (LOth Cir. 2005) wiisisessdisssnsscscsaussccwsavvsrmaccuscssewenaveaus 11

People v. Chastain, 733 P.2d 1206 (Colo. 1987) cesse:semmnmxaenmcarenavenm snenmsmnesennmanesenes 13

People v. Jones, 675 P.2d 9 (Colo. 1984) sssssssccrsssnsnsccerectaus vos wennncuavcemaucnssseesees 2

People v. McLaurin, 7103 N.E.2d 11 (IL. 1998) .ccssscseseronenasennnnnmnnnsenseunnencrenceresnnmneneenecs 19

People v. Melendez, 102 P.3d 315 (Colo. 2004): siussssscasassenexccsapeciavesvesaavesvernpeapiaciins 12, 13

People v. Novotny, 320 P.3d 1194 (Colo. 2014). scsisccsseusonarecsnesenerorsnineeisesnenevmnneurmeeaenenee 18

People v. Roblas, 568 P.2d 57 (Colo. 1977) ....... .ssssssusisevsneusassezecs dusetearsctecesdestedecvenseises 12

People v. Roman, 398 P.3d 134 (Colo. 2017)....... ccsssnsisanscaaavencenseninesabensanauvarresenennses 18

ll

Pettijohn v. Hall, 599 F.2d 476 (1st Cir. 1979)..........-ssesesesssesnsesesssvonssspaccsessseveecess 20, 21

Richmond v. Embry, 122 F.3d 866 (10th Cir. 1997) 20.0... ceeceecccceeeseeeteneeeeseeeeeeneenes 19

State v. McDaniel, 665 P.2d 70 (Ariz. 1983) ssccosssssiscensstentwasarexesieveassersoxarceus macetea reas 10

Strickler v. Greene, 527 U.S. 263 (1999) issscsnessamawsennseanaieswannceeennene ueaGUTRORERERORERE = 6, 11

Taylor v. Curry, 708 F.2d 886 (2d Cir. 1988) ....... ec ceeseeeeseeetenreneeetnnneeaseennanananaenenees 20

Taylor v. Yee, 1386 8S. Ct. 929 (2016) scssssssccsscsssssrssscecssasscesnoscsnswencantnncconiwecesaameavanenneuineane 6

United States v. Agurs, 427 U.S. 97 (1976) .0. cece ccccccceeceeececeeeeeteeteeseceeeeeseeeeeeeeeeeeseennes 10

United States v. Batley, 834 F.2d 218 (st Cir. 1987) sssisssssssssseawsavosesavercswsnecesseoossseses 21

United States v. Blackwell, 459 F.3d 739 (6th Cir. 2006) ...... cc ccccccccee cess eeeneeeeeeeeeeeees 20

United States v. Bresil, 767 F.3d 124 (st Cir. 2014) scpesescasusressunsssrssscecassemereceuness 20

United States v. Dowlin, 408 F.3d 647 (10th Cir. 2005) 00... ceeceeeecceeeeeeeeeeeeeneeeeeneees 19

United States v. Hobbs, 31 F.3d 918 (Oth Cir. 1994)... ceccecceseeeseeeeeseseseseeseedecaeees 13

United States v. Hoffman, 832 F.2d 1299 (Ist Cir. 1987) 00... cc cceccecceeeeeeeeeeeeeees 11

United States v. Lopez-Alvarez, 970 F.2d 5838 (9th Cir. 1992) oo... ceeeeeeeeee 23, 24

United States v. Turning Bear, 357 F.3d 730 (8th Cir. 2004) ..... cee cceee eee e eens 22

United States v. Valenzuela-Bernal, 458 U.S. 858 (1982)............cccccccceeeeeeecesenees passim

Washington. v. Texas, 388 U.S. 14 (1967) .... uisssasnsonsmnaxcmnsmanesemnnncnacennacsnensenss passim

1V

RULES

FED. R. EVID. 404 . isscisissvasacsaxcesess secawesssnecamacerssnuasaaunesnsananence sa cuenmnivaneennennncmamennannesorenssnes 2

FED. R. EVID. 405 ccosvsennnsnnersonsgeresonenenneaneeanemennnenn ties aban teas usie tices wiananiat wait uaicy boeeuncnesceeseeeas 2

FED. R. EVID. 608(a). ssssssescssssscosnsscnuscrssscvsnnataeuaesnsssnavexconmmaannaens cantons eassemmemerenennneereses 22

FED. R. EVID. 701 ..cccsvsessvcosnenectcencnccanensersescerseenenseneersoensennngessantnssyseseesusiecdsessvscesssesssdeoes 22

STATEMENT OF THE CASE

1. Background. Zachary Rodriguez and Lena Atencio met Petitioner

Francisco Quintana after leaving a party, and Petitioner invited them to his house.

Tr. 1/29/13, pp. 108-13, 116, 189-40, 152-54; 1/31/13, pp. 51-52, 104—05; Pet. App.

at 4a, 7a—8a. There, Atencio and Rodriguez attempted to purchase $100 of drugs

from Petitioner, but Petitioner either did not supply a sufficient quantity of drugs or

attempted to sell them fake drugs. Tr. 1/29/13, pp. 115-16, 178, 163-64; Pet. App. at

4a, 7a—8a. Ultimately, Rodriguez demanded that Petitioner return the money, and

when Petitioner refused, Rodriguez repeatedly challenged Petitioner “to fight for

the money” and threatened Petitioner that he would “beat your ass.” Petitioner

retorted by saying “Oh, yeah?” and retrieving a pre-staged rifle. Pet. App. at 4a.

Petitioner then fired at Rodriguez and missed, Rodriguez charged up the stairs

towards Petitioner, and Petitioner shot him. Jd. at 4a—5a.

Throughout this encounter, evidence was consistent that Rodriguez acted

aggressively, threateningly, and belligerently, which Petitioner conceded below. Jd.

at 4a—5a, 7a—8a, 13a, 14a n.3, 15a. There was no question that Rodriguez acted

otherwise. Id. Evidence also established that Petitioner was “high out of his mind.”

Id. at 8a. Importantly, Petitioner never told Rodriguez to leave. Id.

2. District court proceedings. At trial, Petitioner sought to introduce two

instances of “other-acts” evidence implicating Rodriguez’s aggressive nature. Id. at

1la—12a. The first concerned a prior altercation between Rodriguez and one of

Petitioner’s neighbors, which resulted in police removing Rodriguez from the

neighbor’s home. Jd. at 13a—14a. The second involved an incident earlier on the

Sven of the shooting, where Rodriguez had an altercation with his mother when

she would not provide him with money; Petitioner did a6t know about this incident.

Id. at 15a—16a. The court excluded the evidence of both incidents. Jd. at 1la—12a,

15a—l6a.

The jury rejected Petitioner's claim of self-defense and convicted him of first

degree assault, menacing, sentencing enhancers related to the shooting, and

misdemeanor use of a controlled substance. Id. at 4a—5a, 7a—9a.

3. Colorado Court of Appeals affirmance. The Colorado Court of Appeals

affirmed. Id. at 3a—4a. It held that the district court erroneously excluded evidence

of Rodriguez’s altercation with the neighbor, but—as an evidentiary question—the

exclusion was harmless. Jd. at 1la—14a. It also held that the error was harmless

under the constitutional standard for interfering with Petitioner's right to present a

defense. Id. at 14a n.3. As to the exclusion of evidence of Rodriguez’s altercation

with his mother, the court of appeals “[a]ssum[ed] without deciding” that it was

error to exclude but that it was nonetheless harmless.! Jd. at 15a—17a. As to both

instances, the court found that the evidence simply would have been cumulative to

other admitted evidence concerning Rodriguez’s aggressiveness and tendencies

towards violence. Jd. at 1la—17a.

1 It is questionable whether this was error at all, as specific instances of a victim’s

prior acts of violence are relevant only if the defendant had knowledge of the prior

acts at the time of the offense. E.g. People v. Jones, 675 P.2d 9, 17 (Colo. 1984)

(citing FED. R. Evip. 404 & 405 Advisory Committee Notes). Here, it is undisputed

Petitioner did not have such knowledge.

In the Court of Appeals, Petitioner did not argue that Colorado failed to apply

this Court’s “materiality” standard. Nor did Petitioner argue that Colorado’s

materiality standard was different from this Court’s standard. And Petitioner did

not suggest there was any confusion in any other jurisdiction as to this Court's

“materiality” standard for addressing harmless error review. Thus, the court of

appeals did not consider any of these arguments.

The Colorado Supreme Court declined to review the Court of Appeals’

decision. Petitioner now asks this Court to grant certiorari, raising contentions he

did not present below.

REASONS FOR DENYING THE PETITION

There is no compelling reason to grant certiorari in this case.

First, this case is a poor vehicle to address the question presented. The

question Petitioner raises—whether evidence need be “material” and what showing

is necessary to establish that the erroneous exclusion of evidence violated a

defendant’s right to present a defense—was never raised, briefed, or addressed in

any court below. His ancillary issue, that Colorado applies the wrong standard,

likewise was never presented below. And Petitioner never suggested in the courts

below that there is a material misunderstanding of how to assess erroneously

excluded evidence—certainly not in a way that would implicate this case’s facts or

suggest that Colorado applies a different standard than this Court has directed.

Second, Petitioner’s proposed issue that this Court has never imposed a

“materiality” standard is flatly contradicted by long-settled law from this Court. In

those cases, this Court unambiguously affirmed the “materiality” requirement.

Colorado follows that standard, see Krutsinger v. People, 219 P.3d 1054 (Colo. 2009),

cert. denied sub. nom. Krutsinger v. Colorado, 559 U.S. 1049 (2010), and followed it

here. The evidence here was not material under this Court’s precedent, and the

Colorado Court of Appeals’ opinion was therefore correct.

Third, Petitioner’s proposed split of authority is not a split at all. The cases

he cites all address either factually inapposite circumstances or simply emphasize

different factors than those either at issue or relied upon here. Granting certiorari

would not resolve any confusion among lower courts, as there is none. Finally, the

excluded evidence was not material, and thus Petitioner’s reliance on the purported

split in authority between jurisdictions imposing the materiality standard is

immaterial.

I. This case is an inappropriate vehicle for addressing the

Question Presented.

_Petitioner’s case is a poor vehicle for considering his Question Presented,

because he did not raise it in the lower courts, and the arguments he makes now

were therefore not addressed.

A. Petitioner’s Question Presented was never presented

below.

The Question Presented, as described in the Petition, was not presented by

Petitioner in Colorado’s courts. Although Petitioner did argue that the error in

excluding evidence was not harmless, he did not argue that Colorado applied a

standard different from this Court or that Colorado’s standard required a greater

showing than the “materiality” standard articulated by this Court. Rather, at all

4

times the parties agreed on the core analytical framework—that of whether the

alleged evidentiary exclusion amounted to harmless error or, as a constitutional

matter, was harmless beyond a reasonable doubt. In this respect, Petitioner’s

complaint is solely the application of the case’s facts to existing law. At no time did

Petitioner suggest the harmless error framework itself was inappropriate. The ‘

limited nature of Petitioner’s arguments below is reflected in the Court of Appeals’

discussion of the issue. That court’s opinion resolves Petitioner’s claims under the

established harmlessness standard, but gives no indication that Petitioner had

challenged the standard—because he in fact had not. Pet. App. 10a—17a.

Below, Petitioner relied exclusively on arguing that the error was not

harmless under Colorado’s settled harmless error framework. He did not suggest

that framework was incorrect under this Court’s jurisprudence, and he did not

contend that the court of appeals misapplied this Court’s framework but rather that

he disagreed with the court of appeals’ determination. Nor did he argue—as he does

here—that what he labels as Colorado’s “leading” case, Krutsinger v. People, 219

P.3d 1054 (Colo. 2009), is out of step with this Court’s precedent. At best, he argued

in his petition to the Colorado Supreme Court that the court of appeals had

misapplied Colorado’s harmless error analysis.

At no point did Petitioner suggest in the lower courts that Colorado had not

adopted the materiality standard, the materiality standard was inapplicable, or

that Colorado’s framework was wrong under this Court’s pronouncements. Because

this avenue for relief was never presented, addressed, or resolved below, asking this

Court to assess these factors without any record or findings below to review makes

this case an exceptionally poor vehicle to consider this question. See Taylor v. Yee,

136 S. Ct. 929 (2016) (mem.) (Alito, J., concurring in the denial of certiorari)

(concurring in the denial of certiorari because the case was a “poor vehicle” for

reviewing the question presented).

Even if making this argument would have been futile in the Colorado Court

of Appeals, preserving it was required. Cf. MedImmune, Inc. v. Genetech, Inc., 549

U.S. 118, 125 (2007) (holding that a futile argument to overrule precedent was

properly preserved for subsequent consideration by developing a “few pages of

[petitioner’s] appellate brief’ to preserve the issue).

B. This Court denied certiorari in Krutsinger, the

Colorado case that Petitioner attacks.

Petitioner attacks Krutsinger v. People, 219 P.3d 1054 (Colo. 2009). Pet. 9-10,

arguing that it is inconsistent with this Court’s precedent. This Court declined to

grant certiorari in that case. See Krutsinger v. Colorado, 559 U.S. 1049 (2010).

While a denial of certiorari is of course not a ruling on the merits, Krutsinger at

least presented the question of the appropriate harmless error framework: that

topic was central to that case. Krutsinger directly addressed the question of

materiality and constitutional harmlessness, by reckoning with this Court’s

decisions in Valenzuela-Bernal, Strickler, Chapman, and Crane.? And My.

Krutsinger petitioned this Court precisely on the question of whether the Colorado

2 United States v. Valenzuela-Bernal, 458 U.S. 858 (1982); Strickler v. Greene, 527

U.S. 263 (1999); Chapman. v. California, 386 U.S. 18 (1967); Crane v. Kentucky, 476

U.S. 683 (1986).

Supreme Court had misinterpreted this Court’s materiality requirement in crafting

Colorado’s harmlessness assessment. This Court denied review. There is no reason

this Court should accept review now, in a case in which the materiality question

was never presented, where it previously denied review in a case in which the issue

had been squarely presented

Petitioner also claims that this Court has not applied a materiality standard

in the past. Pet. 3. That claim is contrary to Washington v. Texas, 388 U.S. 14

(1967) and United States v. Valenzuela-Bernal, 458 U.S. 858 (1982). Revisiting the

topic to clarify a question that is already settled is unnecessary. This case does not

provide an adequate vehicle for addressing potential alterations to this Court’s

harmless error and materiality analysis, and it does not provide a compelling

reason for doing so.

II. This Court long ago articulated the materiality

harmlessness standard for review of constitutional

errors.

Contrary to Petitioner’s argument, Colorado adheres to the same

“materiality” harmlessness standard for review of constitutional errors.

A. Petitioner is incorrect when he suggests this Court

has not adopted a materiality standard.

This Court has been clear that reversal for violation of the Compulsory

Process or Due Process clauses requires “some showing that the evidence lost would

be both material and favorable to the defense ... in ways not merely cumulative to

the testimony of available witnesses.” Valenzwela-Bernal, 458 U.S. at 873 (emphasis

added).

Petitioner claims that lower courts across the country have misinterpreted

this Court’s holdings in Washington and Valenzuela-Bernal to impose a

“materiality” standard when evaluating constitutional errors for harmlessness. It is

Petitioner, however, who has misread these cases, which unambiguously convey

such a materiality standard. The materiality requirement is well settled and does

not merit this Court’s further attention.

In Chapman v. California, this Court held that only errors that specifically

and directly offend a defendant’s constitutional rights are “constitutional” in

nature. 386 U.S. 18, 24-25 (1967) (applying a “harmless beyond a reasonable doubt”

test for constitutional errors). This Court has repeatedly recognized that

constitutional errors can be harmless beyond a reasonable doubt depending on,

among other things, the importance of the witness’s testimony in the prosecution’s

case, the presence or absence of corroborating evidence, any evidence contradicting

a witness’s testimony on material points, the extent of cross-examination permitted,

and the cumulative nature of any testimony. E.g. Olden v. Kentucky, 488 U.S. 227,

232-33 (1988).

In Crane v. Kentucky, 476 U.S. 683, 687, 691 (1986), this Court held that the

extent to which an evidentiary ruling prevents a defendant from subjecting a

prosecutor’s case to meaningful adversarial testing determines whether a

defendant’s constitutional right to confront witnesses or prevent a defense has been

violated.3 This Court premised much of its holding in Crane on the exclusion of

“meaningful adversarial testing” regarding information about the atmosphere of the

defendant’s interrogation, which the trial court had excluded and which this Court

held had “highly relevant” probative considerations for assessing the confession’s

veracity. Id. at 688-69, 691. This Court recognized that special circumstances

surrounded confession and suppression claims, particularly regarding evidence

“bearing on the credibility of a confession when such evidence is central to the

defendant’s claim of innocence.” Jd. at 690. Nevertheless, it acknowledged that it

was “reluctan|t] to impose constitutional constraints on ordinary evidentiary rulings

tT

by state trial courts” and that state courts had “wide latitude’ to exclude evidence

that is ‘repetitive [or] only marginally relevant.” Jd. at 689-90 (internal quotations

omitted).

In Washington, this Court held that excluding “relevant and material” and

“vital” evidence can violate a defendant’s right to present a defense. 388 U.S. at 19.

Relying on Washington, in Valenzuela-Bernal, this Court reiterated that a violation

of the right to compulsory process as guaranteed by the Sixth Amendment required

showing more than a “mere absence of testimony,” but rather that the “arbitrarily

deprived” testimony “would have been relevant and material, and ... vital to the

defense.” 458 U.S. at 867 (citing Washington) (emphasis in original). Thus, reversal

for the deprivation of testimony required showing how that testimony “would have

been both material and favorable to his defense.” Jd. (emphasis added). The

3 The Colorado Supreme Court cited Crane for this principle. See Krutsinger v.

People, 219 P.3d 1054, 1062 (Colo. 2009) (citing Crane, 476 U.S. at 689, 691).

9

omission must be evaluated “in the context of the entire record.” Id. at 868, 874 n.10

(citing United States v. Agurs, 427 U.S. 97, 112-13 (1976)).

Petitioner proposes that Valenzuela-Bernal tied the necessity for such a

materiality standard to the specific circumstances created in Valenzuela-Bernal,

where the government had the obligation to deport potential witnesses, which

thereby interfered with the defendant’s right to compulsory process and to present a

defense. Petitioner further suggests that Valenzuela-Bernal would not apply toa

court’s decision to exclude evidence. Valenzuela-Bernal was not so limited to the

specific circumstance of deporting witnesses.

Rather, the purpose behind the “materiality” assessment was to assess

whether the excluded evidence was relevant, material, and vital. The inaccessibility

of deported witnesses merely provided the vehicle by which this Court rearticulated the materiality framework. This is clear based on Valenzuela-Bernal’s

unequivocal, and repeated, citations to Washington, which also articulated the

“vital” and “material” standard. See id.; see also State v. McDaniel, 665 P.2d 70, 76

(Ariz. 1983) (“In Valenzuela-Bernal, the United States Supreme Court discussed its

holding in Washington and re-emphasized that an individual cannot establish a

Sixth Amendment violation without some showing that the evidence lost would be

both material and favorable to the defense.” (internal quotations omitted)).

Petitioner’s suggestion that Valenzuela-Bernal was limited to its narrow facts

concerning evidence excluded due to the government’s deportation of witnesses was

unequivocally rejected in United States v. Hoffman, 832 F.2d 1299, 1303 n.3 (1st

10

Cir. 1987). Hoffman recognized that Valenzuela-Bernal had “different trappings,”

but the “bedrock issue” was the same: whether the state “impermissibly interfered

with the [defendant’s] right to mount a defense.” Id. (citing Valenzuela-Bernal, 458

U.S. at 871). The deportation was “not of decisive consequence”; rather, what

mattered “most for the purposes at hand is that the Court in Valenzuela-Bernal

highlighted a number of the considerations that enter into the calculus necessary to

determine when government’s contribution to a defendant’s inability to produce a

witness runs afoul of the sixth amendment.” Jd. Indeed, Valenzuela-Bernal

addressed excluded evidence by evaluating whether it was materially relevant.

This Court, and other courts, have extended the “materiality” requirement as

to excluded evidence beyond Valenzuela-Bernal and applied it in other, similar

contexts. E.g. Strickler v. Greene, 527 U.S. 268, 281 (1999) (in the context of a

habeas proceeding, treating the constitutional materiality test as equivalent with

the prejudice inquiry as applied to a prosecution’s failure to disclose exculpatory

information held by police); Patton v. Mullin, 425 F.3d 788, 797-98 (10th Cir. 2005)

(applying, in habeas proceeding, the constitutional materiality test to evidence

excluded by trial court’s restriction on cross-examination).

Petitioner suggests that excluded evidence is “material” and requires reversal

of a conviction whenever the excluded evidence was, to some degree, exculpatory.

Pet. 2, 12 (citing Washington, 388 U.S. at 23). “Materiality” is not so broadly

construed. Rather, reversal of a conviction is required only if the excluded evidence

is relevant, material, and vital; it cannot be cumulative. Valenzuela-Bernal, 458

11

U.S. at 867-68, 873. And it must be “important.” See Washington, 388 U.S. at 24

(Harlan, J., concurring). Justice Harlan’s concurrence recognizing that the excluded

evidence must be “important” signals two key points: (1) that the evidence not

merely be cumulative; and (2) that the evidence in some way advances the inquiry.

Regardless, both Washington, 388 U.S. at 16, 23, and Valenzuela-Bernal, 458 U.S.

at 866-67, explicitly and repeatedly adopt the materiality standard. Here, the

excluded evidence was relevant in the sense that it provided additional context for

the shooting and Petitioner’s belief of Rodriguez’s aggressiveness. But significant

evidence in the record already conveyed that aggressiveness, including Petitioner's

own testimony and Rodriguez’s and Atencio’s own concession of his behavior. In this

respect, the excluded evidence was simply cumulative and far from vital.

In short, this Court has plainly established that excluded evidence is subject

to a materiality requirement, and there is no reason either to doubt the applicability

of that requirement or to revisit such a settled issue.

B. Colorado follows this Court’s standard.

Following Valenzuela-Bernal, Colorado implemented the materiality

standard as to constitutional errors. People v. Melendez, 102 P.3d 315, 820-21 (Colo.

2004).4 In Melendez, the Colorado Supreme Court echoed this Court’s

pronouncements in Valenzuela-Bernal and Washington that “courts, in determining

both prejudice and sanction, consider whether the proffered evidence would be

4 The court already had determined that the “reasonable doubt standard” of

harmlessness was the same as the materiality standard this Court articulated in

Agurs. See People v. Roblas, 568 P.2d 57, 60 (Colo. 1977).

12

material to the party’s case and whether it would be unduly cumulative.” Id. at 321

(emphasis added); cf. Valenzuela-Bernal, 458 U.S. at 873 (stating that evidence

must be “both material and favorable” and “not merely cumulative”). In this respect,

Colorado recognized that a court’s harmlessness determination must account for

whether “‘the witnesses’ testimony was crucial to [the defendant’s] presentation of

his case.” Id. (quoting United States v. Hobbs, 31 F.3d 918, 923 (9th Cir. 1994)).

Thus, the supreme court in Melendez recognized that evidence must be both

material and favorable. Id. at 320 (citing Valenzuela-Bernal, 458 U.S. at 867);

accord People v. Chastain, 733 P.2d 1206, 1212 (Colo. 1987) (recognizing that

excluded testimony must have been both “material and favorable” and that the

“same materiality standard is applied in a due process analysis’).

Petitioner suggests that a subsequent case, Krutsinger v. People, 219 P.3d

1054 (Colo. 2009), is the “leading” Colorado case and requires more than

“materiality.” A simple analysis of Krutsinger rejects Petitioner’s position.

The supreme court in Krutsinger recognized that restricting testimony or

defense evidence bearing on a witness’s credibility can implicate the defendant’s

constitutional rights—if it prevents a “meaningful opportunity” to present a

defense. Id. at 1061 (citing Crane, 476 U.S. at 690-91). This approach is consistent

with this Court’s holdings in Crane and Valenzuela-Bernal, which acknowledged

different considerations when a defendant has no means of challenging particular

evidence, particularly when that evidence bears on evidentiary credibility central to

guilt.

13

Krutsinger confirmed that constitutional error is universally implicated upon

complete denial of a constitutional right—i.e., the “meaningful opportunity” to

challenge the evidence—but it did not say that error is harmless beyond a

reasonable doubt only absent a total denial.5 See id. at 1062 (“It does not follow, of

course, that every restriction on a defendant’s attempts to challenge the credibility

of evidence against him ... amounts to federal constitutional error.”); accord Carsell

v. Edwards, 165 Colo. 335, 343, 439 P.2d 33, 37 (1968) (“[U]nless a restriction of

cross-examination is so severe as to constitute a denial of that right, the extent to

which cross-examination shall be allowed rests within the sound discretion of the

trial court.”). Rather, Krutsinger settled on the principle that a defendant’s right’s to

present a defense is violated “only where the defendant was denied virtually his

only means of effectively testing significant prosecution evidence.” Krutsinger, 219

P.3d at 1062 (emphasis added). Again, this is consistent with this Court’s

pronouncements in'both Crane and Valenzuela-Bernal. In Krutsinger, the defendant

was not denied his “only” means of challenging the evidence’s credibility, since

multiple other avenues existed to test it. Thus, reversal only was required if the

error substantially influenced the verdict or affected the proceeding’s fairness. Id. at

5 In doing so, Krutsinger addressed the situation in Crane, where the credibility of a

single witness was “so central to the case against the defendant,” that the question

of harmlessness was almost “precisely identical with[] the question of whether he

has been deprived of a right to meaningfully challenge credibility.” Krutsinger, 219

P.3d at 1063. Because that was not the case in Krutsinger, the question of whether

the exclusion of evidence was constitutional was not the same as whether it was

material and thus whether the harm was constitutional where, instead, it was

essentially cumulative to other “similar inconsistencies” already presented. Id.

14

1063. In other words, the exclusion of that evidence did not implicate the

constitutional “materiality” standard.

Krutsinger thus recognized the important distinction inherent in this Court's

holdings in both Crane and Valenzuela-Bernal: that not every restriction on a

defendant’s attempt to challenge the credibility of evidence implicates federal

constitutional error but instead may involve non-constitutional harmless

evidentiary error. Id. at 1062-63. It is this difference that Petitioner uses to suggest

Colorado does not follow the materiality standard, but Petitioner fails to

acknowledge that different errors—constitutional or evidentiary—require different

analytical frameworks for assessing the error. In this respect, he uses Krutsinger’s

discussion of non-constitutional harmlessness to suggest that Krutsinger misapplied

the constitutional materiality standard.

Yet, Krutsinger recognized that this Court refrained from directing state

courts to apply constitutional constraints to applications of evidentiary law. 219

P.3d at 1062 (citing Crane, 476 U.S. at 689). It emphasized that constitutional error

occurred where excluding the evidence, such as in Crane, effectively prevented the

defendant from testing the “evidence central to establishing his guilt” at all: where

excluding the evidence prohibited all inquiry. Id. (internal quotations omitted)

(emphasis added). The standard that Krutsinger recognized, as derived from this

Court, is that an error is constitutional and cannot be harmless beyond a reasonable

doubt when exclusion of the evidence prevented all inquiry into evidence central to

determination of the guilt. Id. In Krutsinger, however, the defendant had multiple

15

other avenues to demonstrate motive or bias from the witness, and defense counsel

was able to challenge the witness’s credibility by illuminating inconsistencies in her

testimony. Id. So, too, with Rodriguez's testimony and defense counsel in this case.

Multiple parties testified as to Rodriguez's aggressive behavior, including his

explicit exhortations to violence and threats to beat up Petitioner.

Petitioner suggests that this Court’s review is required because Krutsinger

requires a “complete denial” of a defendant’s ability to challenge prosecution

evidence. Pet. at 9-10. But that is not what Krutsinger stated. Krutsinger

determined that deprivation of testimony of a single witness did not “deprive the

defendant of a meaningful opportunity to present a complete defense,” and thus did

not rise to the level of federal constitutional error. 219 P.3d at 1056.

In short, this Court has held that any evidentiary error implicating a

defendant’s right to present a defense must prevent “meaningful adversarial

testing” of that evidence central to the defendant’s guilt. Crane, 476 U.S. at 691.

Krutsinger followed that directive. 219 P.3d at 1062 (citing Crane, 476 U.S. at 689,

691). Unlike Crane, the evidence at issue in Krutsinger did not prevent meaningful

adversarial testing of the evidence. In that respect, the “materiality” test was not

implicated and even if it were, the evidence was not material. But because the

evidence was subject to meaningful adversarial testing, the error was evidentiary

and the constitutional harmless error standard was inapplicable.

Contrary to Petitioner’s position, determining that an error is evidentiary

instead of constitutional does not impose a universal requirement that, asa

16

constitutional matter, the evidence must have denied him virtually the only means

of effectively testing significant prosecution evidence. Pet. at 14 (citing Krutsinger,

219 P.3d at 219). Rather, that was simply the Krutsinger court’s recognition that

this Court in Crane had found errors of constitutional magnitude when excluding

the evidence prevented complete “meaningful adversarial testing” of evidence

central to the issue of guilt. 219 P.3d at 1062 (citing Crane, 476 U.S. at 689, 691).

Here, of course, Petitioner had significant means of testing the prosecution’s

evidence, both through cross-examination of Rodriguez and Atencio—who admitted

Rodriguez’s threatening, aggressive behavior to Petitioner—and through

Petitioner’s own testimony, which was corroborated by Petitioner’s brother’s

testimony.

Petitioner suggests that Krutsinger requires the focus to remain solely on

individual witnesses rather than the trial as a whole. Pet. at 9n.3 (quoting

Krutsinger, 219 P.3d at 1061). But this discussion in Krutsinger is about assessing

the materiality of the error itself: “[a]lthough the nature and extent of any ruling

limiting the presentation of defense evidence will necessarily determine whether it

amounts to constitutional error, just as the nature and extent of the trial court’s

limitation on cross-examination were determinative in Van Arsdall,® the focus of

6 Delaware v. Van Arsdall, 475 U.S. 673, 679-80 (1986) (holding that the right to

cross-examination may be subject to reasonable limitations and well-established

rules of evidence and that any error is prejudicial only where a reasonable jury

would have a “significantly different impression”). Citing Van Arsdall, Krutsinger

properly recognized that the “outcome-determinative approach” appropriate for

constitutional errors requires review of “the trial as a whole”. 219 P.3d at 1059

17

the inquiry remains on individual witnesses rather than the trial as a whole.”

Krutsinger, 219 P.3d at 1061.

Petitioner suggests that Krutsinger focuses the harmlessness inquiry of the

error solely to the witness, rather than the entire trial itself. This argument

misapprehends Krutsinger. Petitioner erroneously suggests that analysis is

collapsed into one assessment, which focuses solely on the witness. But, as this

Court and as Colorado recognized, “meaningful adversarial testimony” considers the

trial as a whole—including whether the excluded evidence was cumulative. Olden,

488 U.S. at 232—33; Valenzuela-Bernal, 458 U.S. at 873; Krutsinger, 219 P.3d at

1062-63. Regardless, here the court of appeals did look at the whole record—

making this argument about Krutsinger irrelevant and not cause for this Court to

accept review of a wholly different case and issue.

Even post-Krutsinger, Colorado’s supreme court has emphasized that the

harmless error inquiry “requires some outcome-determinative analysis, evaluating

the likelihood that the outcome of the proceedings in questions were affected by the

error.” People v. Novotny, 320 P.3d 1194, 1201 (Colo. 2014) (citing Krutsinger, 219

P.3d at 1063) (emphasis added); see also People v. Roman, 398 P.3d 134, 138 (Colo.

2017) (holding that objected-to trial error is harmless where no reasonable

possibility exists that it contributed to the defendant’s conviction). This framing is

fully consistent in all respects with this Court’s articulated “materiality” standard.

(quoting Van Arsdall, 475 U.S. at 679). Thus, contrary to Petitioner’s suggestion,

Krutsinger indeed rooted evaluation of the error in context of the trial as a whole.

18

Ill. Any divergence among jurisdictions is not a true split;

Petitioner is selectively quoting from cases and ignoring

the courts’ actual rulings.

Referring to Brady v. Maryland, 373 U.S. 83 (1963), Petitioner claims that

courts are “confused and conflicted” over the proper standard for constitutional

claims related to the exclusion of defense evidence, with some courts applying a

“Brady-style materiality test” and others only considering whether the excluded

evidence was “important” to the defense and whether there was a valid justification

for its exclusion. Pet. 6—8. But Petitioner is simply misreading the cases.

A. The jurisdictions that Petitioner says “import” a

materiality requirement are simply following

Valenzuela-Bernal.

Petitioner suggests that the majority of jurisdictions—the Second, Third,

Sixth, Seventh and Tenth Circuits, as well as the District of Columbia and I]linois—

improperly “import” a materiality requirement. Pet. 6—7. Of course, it is not those

jurisdictions, but this Court itself, in Valenzuela-Bernal, that “imported” the

materiality requirement.

A review of these opinions show that their application of the materiality test

is thoroughly grounded in this Court’s precedent. See Gov't of Virgin Islands v.

Mills, 956 F.2d 448, 446 (3d Cir. 1992) (citing Valenzuela-Bernal); Harris v.

Thompson, 698 F.3d 609, 627 (7th Cir. 2012) (citing Valenzuela-Bernal); Richmond

v. Emory, 122 F.3d 866, 872 (10th Cir. 1997) (citing Valenzuela-Bernal); United

States v. Dowlin, 408 F.3d 647, 660 (10th Cir. 2005) (citing Valenzuela-Bernal);

Heath v. United States, 26 A.3d 266, n. 30 (D.C. 2011) (citing Valenzuela-Bernal);

People v. McLaurin, 703 N.E.2d 11, 26 (Ill. 1998) (citing Valenzuela-Bernal); see also

19

Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983) (not citing the recently-decided

Valenzuela-Bernal, but citing Agurs); United States v. Blackwell, 459 F.3d 739, 754-

55 (6th Cir. 2006) (a Brady case that cites and follows Brady).

These jurisdictions are not improperly “importing” some requirement on their

own; they are applying and following this Court’s case law requiring materiality.

B. Petitioner is misreading the cases he cites from his

favored jurisdictions.

Petitioner claims there is a jurisdictional split over the proper harmlessness

standard and whether that standard includes a “materiality” component. In support

of that claim, Petitioner cites just three cases, from the First, Eighth, and Ninth

Circuits. But Petitioner misreads those circuits’ application of their harmlessness

jurisprudence. Each of those circuits follows this Court’s “materiality”

jurisprudence, but in the cited cases simply found that the excluded evidence was

material, and not otherwise cumulative to evidence included in the record, so those

defendants were actually harmed by the exclusion of that evidence. In other words,

if the jury had heard the excluded evidence, the defendant might have been

acquitted.

Start with the First Circuit case, Pettijohn v. Hall, 599 F.2d 476 (1st Cir.

1979). Pettijohn predated Valenzuela-Bernal by three years, so it is difficult to hold

the First Circuit accountable for not applying the as-yet-not-endorsed materiality

test. Subsequent opinions show the First Circuit follows Valenzuela-Bernal’s test of

materiality. See, e.g., United States v. Brestl, 767 F.3d 124 (1st Cir. 2014)

(upholding conviction despite government’s deportation of defense witnesses

20

before trial, because there was no “reasonable likelihood” those witnesses’

testimony “could have affected the judgment of the trier of fact”) (quoting

Valenzuela-Bernal); cf. United States v. Bailey, 834 F.2d 218 (1st Cir. 1987)Error!

Bookmark not defined. (discussing Valenzwela-Bernal and granting limited

remand to determine whether excluded defense witnesses possessed “evidence

material and helpful to the defense”). So the First Circuit now certainly seems to be

applying a test for materiality.

And in any event, in Pettijohn the excluded evidence implicated full-on

innocence claims by implicating an alternate suspect—evidence that had no other

avenue for admission. Jd. at 477—78. In Pettijohn, a witness to a robbery initially

identified a suspect different than the defendant, but the trial court excluded that

evidence as improper impeachment. Id. The First Circuit found it error to focus

solely on impeachment as the evidentiary question because evidence of the

alternate identification carried affirmative evidence probative against the

defendant’s guilt. Id. at 478-79. The court thus found “such exculpatory evidence”

was relevant and material to Pettijohn’s defense because “he could support his

version of the event in no other way.” Jd. at 479-80. It fully recognized that the

evidence was “critical” and not cumulative. Id. at 480-81. Finally, it determined

that because the excluded evidence was not cumulative, because there was “no

other way” to challenge the identification of the defendant, and because

identification of the robber was “the key issue,” the evidence was not harmless

beyond a reasonable doubt. Jd. at 482 (citing Chapman, 386 U.S. at 21).

21

Here, by contrast, in Petitioner’s case the excluded evidence was the

definition of cumulative, and both excluded incidents were temporally removed from

the facts of Petitioner’s altercation with Rodriguez. There existed other ways to

establish Rodriguez’s violent temperament, and those other ways were pursued and

Rodriguez’s aggressiveness so established. Thus, the excluded evidence here was

neither “critical” nor “material.”

Petitioner also cites United States v. Turning Bear, in which the Eighth

Circuit addressed a sexual assault where the government’s case hinged on the

victims’ credibility and the defendant did not testify. 357 F.3d 730, 733 (8th Cir.

2004). The excluded evidence would have called into question the truthfulness of

one of the victims, and the Eighth Circuit therefore evaluated whether this excluded

evidence was “both material and favorable.” Id. (citing Valenzuela-Bernal, 458 U.S.

at 867). The Eighth Circuit recognized that state courts could exclude evidence

under state rules of evidence, but it determined that the state court in that case had

not relied on any “cognizable evidentiary rule” in excluding the evidence. Jd. On the

contrary, the court recognized that a victim’s character of untruthfulness was

admissible. Id. at 734 (citing FED. R. EvID. 608(a) & 701). It also found that the

excluded evidence was the only way to challenge the victim’s credibility. Id. at 734—

35. In this respect, the excluded evidence was “clearly not needlessly cumulative.”

Id. at 735. In short, the Eighth Circuit simply found that that particular evidence

was, in fact, material, and its exclusion wholly prevented probing that aspect of the

evidence against Turning Bear. Id.

22

By contrast, in Petitioner’s Colorado case, the issue of “untruthfulness” was

never implicated and significant evidence of Rodriguez's aggressive behavior and

direct threats was introduced, so evidence of Rodriguez’s dangerousness was

squarely presented to the jury.

Finally, Petitioner cites United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir.

1992), but that case is essentially a mirror image of Krutsinger: it held that a trial

court’s evidentiary error in precluding cross-examination of a witness on a limited

topic did not violate the defendant’s constitutional rights of confrontation or to

present a defense because the evidence otherwise “revealed sufficient information

with which the jury could appraise [the witness]’s reliability.” Jd. at 587. And the

information sought to be elicited did not otherwise undermine the credibility of

existing evidence “in any substantial way” and “not in a manner different than that

accomplished by evidence which was introduced.” Id. Nor would the jury’s

perception of the witness “have been significantly altered by the introduction of the

additional testimony.” Id.

The Ninth Circuit recognized, like Krutsinger, that “not every hearsay error

amounts to a constitutional violation,” and it found that the excluded evidence

would “not have added substantially to the knowledge the jury gained during the

course of the trial.” Jd. at 588. And, like Krutsinger, because the court’s “erroneous

ruling did not violate the defendant’s constitutional rights,” the court “d[id] not test

the error against the stringent ‘beyond a reasonable doubt’ harmless error standard,

23

but rather against the non-constitutional harmless standard of Federal Rule of

Criminal Procedure 52(a). Id. (citing Chapman, 386 U.S. at 21).

Here, too, Rodriguez's credibility and evidence of his threats and aggression

would not have been “significantly altered” by the introduction of the other-acts

evidence. The other-acts evidence would not have undermined other existing

evidence demonstrating Rodriguez’s aggressiveness or behavior, and it certainly

would not have further diminished his credibility. Finally, the jury’s perception of

Rodriguez would not have been altered in any substantial way, certainly not when

weighed against “the knowledge the jury gained during the course of the trial.” Cf.

id. In this respect, the “jurors were thus aware” that Rodriguez was violent,

aggressive, and threatening Petitioner. Accord id. Here, too, then, review was

appropriate under the non-constitutional harmless error standard.

In short, none of the cases support Petitioner’s claim that the First, Eighth,

and Ninth Circuits apply a standard more lenient than this Court’s materiality

standard. Nor do they advance his argument that the excluded evidence here would

have yielded a material or substantial difference in the jury’s perception of the

incident or Rodriguez as an aggressive instigator.

At trial, Petitioner’s defense included significant evidence of Rodriguez's

aggressive behavior and Petitioner’s stated intimidation of Rodriguez, as well as a

full evidentiary assessment of the shooting itself. His proffered additional evidence

was cumulative and not of constitutional materiality. Petitioner’s call for a grant of

certiorari and summary reversal has no basis and should be rejected.

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