SUMMARY 

July 12, 2018 

2018COA95

No. 15CA1176, People v. Lujan — Constitutional Law — Sixth 

Amendment — Speedy and Public Trial 

A division of the court of appeals considers whether the 

closure of a courtroom — excluding the public, the parties, and 

counsel — to reread instructions to the jury during deliberation 

violates a defendant’s Sixth Amendment right to a public trial. The 

division concludes that the defendant’s right to a public trial was 

violated and that the violation was not trivial because two of the 

purposes of the right to a public trial — (1) “to ensure a fair trial” 

and (2) “to remind the prosecutor and judge of their responsibility 

to the accused and the importance of their functions” — were 

compromised by the empty courtroom. Peterson v. Williams, 85 

F.3d 39, 43 (2d Cir. 1996). Because the violation of a criminal 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
defendant’s right to a public trial constitutes structural error, the 

division reverses and remands for a new trial.
COLORADO COURT OF APPEALS 2018COA95

Court of Appeals No. 15CA1176 

Boulder County District Court No. 13CR1829 

Honorable Andrew R. Macdonald, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Abel Lujan, 

Defendant-Appellant. 

JUDGMENT REVERSED AND CASE 

REMANDED WITH DIRECTIONS 

Division III 

Opinion by JUDGE RICHMAN 

Webb and Fox, JJ., concur 

Announced July 12, 2018 

Cynthia H. Coffman, Attorney General, Brittany Limes, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Haddon, Morgan and Foreman, P.C., Adam Mueller, Denver, Colorado, for 

Defendant-Appellant 
1 

¶ 1 Defendant, Abel Lujan, appeals the judgment of conviction 

entered on a jury verdict finding him guilty of second degree 

murder. Because the trial court erroneously ordered the courtroom 

to be completely cleared when it reread instructions to the jury 

during deliberations, over defendant’s objection, we must reverse 

and remand for a new trial. 

I. Background 

¶ 2 The victim, defendant’s live-in girlfriend, was beaten, 

strangled, and left on the ground outside a friend’s apartment in 

1999. In 2013, the People charged defendant with first degree 

murder. On the first day of trial, defendant conceded that he was 

responsible for the victim’s death, but he argued that he was guilty 

only of reckless manslaughter. 

¶ 3 Over defendant’s objection that the evidence violated CRE 

404(b), defendant’s ex-wife and a former girlfriend testified about 

defendant’s behavior toward them, including that he had hit and 

tried to strangle or suffocate them. For each witness’s testimony, 

the trial court gave a contemporaneous limiting instruction. 

However, at the close of evidence, the jury was instructed only 

generally that “[t]he Court admitted certain evidence for a limited 
2 

purpose. You are instructed that you cannot consider that evidence 

except for the limited purpose I told you about when it was 

admitted.” 

¶ 4 During deliberations, the jury submitted two questions to the 

trial court, one of which said: “Please write down the statement for 

the limited use statement [sic] on the testimonies of [defendant’s exwife and former girlfriend].” Defense counsel objected to sending a 

written version of the contemporaneous instructions to the jury 

room if it did not contain additional language explicitly stating that 

the jury could not use the testimonies as evidence of propensity — 

language that the trial court had already rejected. The prosecutor 

suggested that the jury be brought back to the courtroom, where 

the judge could read the written version of the contemporaneous 

instructions. After a lengthy discussion, the court gave defense 

counsel a choice between (1) sending the jury a written version of 

the limiting instructions given contemporaneously with the 

testimony and (2) clearing the courtroom while it reread the 

contemporaneous limiting instructions aloud to the jury. Counsel 

indicated that he preferred reading the instructions to the jury, but 

he objected to excluding everyone from the courtroom. The court 
3 

responded that it could “never bring the jury out in front of the 

parties” during deliberations and that counsel did not have to worry 

about it because the proceeding would be on the record. 

¶ 5 Ultimately, defense counsel asked the court to read the 

instructions aloud and to note that “we are not in the courtroom, 

. . . and we are allowed to be.” Counsel also requested that the jury 

be told why the parties were not present, and the judge responded 

“of course.”

¶ 6 With the courtroom empty except for the jury, the bailiff, and 

the court reporter, the trial court said, “All right. Good morning, 

ladies and gentlemen. I’m going to read to you the instructions I 

read contemporaneous[ly] with the testimony of [defendant’s exgirlfriend and his ex-wife].” Then the court reread the instructions 

directing that the testimony from each witness could be considered 

only to show motive, intent, or common plan. Finally, it said, “That 

— those are the instructions. Okay. So thank you.” 

¶ 7 The jury found defendant guilty of second degree (knowing) 

murder. 

¶ 8 On appeal, defendant contends that this conviction must be 

reversed because (1) closure of the courtroom to read limiting 
4 

instructions violated his right to a public trial and his right to be 

present and (2) the trial court made three erroneous evidentiary 

decisions. We agree with defendant’s contention regarding a public 

trial and, because we conclude that the error is structural, we do 

not address his contention that his right to be present was violated, 

as a violation of that right is not structural error. However, we 

address his evidentiary contentions because they might arise on 

remand. 

II. Public Trial 

¶ 9 A criminal defendant’s right to a public trial is guaranteed by 

both the United States and Colorado Constitutions. U.S. Const. 

amends. VI, XIV; Colo. Const. art. II, § 16. When the trial court 

erroneously deprives a defendant of this right, the error is 

structural and “require[s] automatic reversal without individualized 

analysis of how the error impairs the reliability of the judgment of 

conviction.” Hagos v. People, 2012 CO 63, ¶ 10; see Stackhouse v. 

People, 2015 CO 48, ¶ 7. A violation of the right to a public trial is 

not amenable to a harmless error analysis because “the effects of 

the error are simply too hard to measure.” Weaver v. 

Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1908 (2017); see 
5 

Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (noting that it would 

be impossible to demonstrate the prejudicial effect of the violation of 

a criminal defendant’s right to a public trial). 

¶ 10 A trial court’s decision to completely close a criminal 

courtroom will not violate a defendant’s public trial right if four 

requirements, articulated in Waller, are met: (1) “the party seeking 

to close the [proceeding] must advance an overriding interest that is 

likely to be prejudiced”; (2) “the closure must be no broader than 

necessary to protect that interest”; (3) “the trial court must consider 

reasonable alternatives to closing the proceeding”; and (4) “[the trial 

court] must make findings adequate to support the closure.” 467 

U.S. at 48; accord People v. Hassen, 2015 CO 49, ¶ 9. 

¶ 11 Here, the trial court decided sua sponte to exclude all but the 

jury, the bailiff, the reporter, and itself from the courtroom, 

advancing the bare assertion that it could never bring the jury in 

front of parties during deliberations. The court’s statement is 

contrary to proper court practices that place the jury and parties 

together during deliberations, such as the reading of an Allen

instruction or the presentation of trial exhibits. See People v. 

Payne, 2014 COA 81, ¶20 (“[D]efendant had a constitutional right to 
6 

be present while the trial court read the modified Allen instruction 

in open court . . . .”); see also DeBella v. People, 233 P.3d 664, 669 

(Colo. 2010) (holding that a court may require that a video be 

viewed in open court rather than give a jury unfettered access 

during deliberations). And the court gave no reason for excluding 

the public. 

¶ 12 Thus, no overriding interest was articulated. The closure was 

exceedingly broad. And the record reflects that, because defendant 

chose to have the instruction read aloud, the court rejected the 

reasonable alternative of sending written instructions to the jury, 

but made no findings to justify the total closure. Under these 

circumstances, the closure was not justified. See, e.g., Presley v. 

Georgia, 558 U.S. 209, 216 (2010) (reversing the defendant’s 

conviction because the trial court did not consider all reasonable 

alternatives to closure, “and that is all this Court needs to decide”). 

¶ 13 The People do not argue that the Waller elements were met. 

Instead, they urge us to affirm the conviction, notwithstanding the 

unjustified closure, because the exclusion was “trivial” and did not 

violate defendant’s Sixth Amendment right. See Waller, 467 U.S. at 

50 (“[T]he remedy should be appropriate to the violation.”). They 
7 

argue that no Sixth Amendment violation occurred because the 

closure was brief and transcribed, and the court only repeated the 

instructions presented during the public portion of the trial. 

¶ 14 The triviality standard, first recognized in the Second Circuit, 

follows the rationale that not every deprivation in a structural 

category constitutes a constitutional violation or requires reversal of 

the conviction. See Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir. 

2009). When the purposes of the right to a public trial — (1) “to 

ensure a fair trial”; (2) “to remind the prosecutor and judge of their 

responsibility to the accused and the importance of their functions”; 

(3) “to encourage witnesses to come forward”; and (4) “to discourage 

perjury” — are not compromised, no Sixth Amendment violation 

occurs. Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996). 

¶ 15 The triviality standard has not been adopted in Colorado, 

although our supreme court has considered it. See Hassen, ¶¶ 15, 

17. However, the Tenth Circuit has recognized that a “brief and 

inadvertent closing of . . . the courtroom . . . [does] not violate the 

Sixth Amendment.” United States v. Al-Smadi, 15 F.3d 153, 154-55 

(10th Cir. 1994). This position appears to be the majority view 

among courts that have considered this standard. See Kristin 
8 

Saetveit, Note, Close Calls: Defining Courtroom Closures Under the 

Sixth Amendment, 68 Stan. L. Rev. 897, 916 (2016). 

¶ 16 We need not pick a side because we conclude that even if we 

were to adopt the triviality standard, the closure here was not 

trivial. Though the closure was brief, it completely excluded the 

public, the attorneys, and defendant from an interaction between 

the court and the jury concerning a matter of law. The closure thus 

compromised two purposes of the right to a public trial — because 

no member of the public was present, the public could not (1) see 

that the defendant was tried fairly, or (2) “remind the . . . [court] of 

[its] responsibility to the accused and the importance of [its] 

function[].” Peterson, 85 F.3d at 43. To ensure a fair trial, the 

transparency of the proceedings must extend not only to the words 

spoken, but also to the presence and the demeanor of the 

participants. When the courtroom is closed, their demeanor is 

hidden. 

¶ 17 The People’s cited cases, in which courts found no violation of 

the Sixth Amendment because closures of the courtroom were 

inadvertent, partial, or necessitated by administrative concerns, do 

not persuade us that the courtroom closure here could be 
9 

considered trivial. See United States v. Perry, 479 F.3d 885, 890 

(D.C. Cir. 2007) (partial); United States v. Ivester, 316 F.3d 955, 960 

(9th Cir. 2003) (administrative); Braun v. Powell, 227 F.3d 908, 918 

(7th Cir. 2000) (partial); Al-Smadi, 15 F.3d at 154 (inadvertent); 

State v. Lindsey, 632 N.W.2d 652, 660 (Minn. 2001) (partial). None 

of these three characteristics was present here. 

¶ 18 The People suggest that, if we do not affirm, we should remand 

the case to the trial court for a hearing on the Waller elements. But 

the record clearly demonstrates that the elements were not met, 

and we decline to waste judicial resources on remand. See Hassen, 

¶ 12; People in Interest of G.B., 2018 COA 77, ¶ 52. 

¶ 19 Because the closure of the courtroom was total, intentional, 

and unjustified, we conclude that defendant’s Sixth Amendment 

right was violated. Thus, we are compelled to reverse his conviction 

and remand the case for a new trial. See Weaver, 582 U.S. at ___, 

137 S. Ct. at 1910 (“[I]n the case of a structural error where there is 

an objection at trial and the issue is raised on direct appeal, the 

defendant generally is entitled to ‘automatic reversal’ regardless of 

the error’s actual ‘effect on the outcome.’” (quoting Neder v. United 

States, 527 U.S. 1, 7 (1999))). 
10 

III. Evidentiary Rulings 

¶ 20 Defendant also contends that the court committed three 

evidentiary errors. Because these issues may arise on remand, we 

briefly address them. 

¶ 21 “A trial court has broad discretion in ruling on the 

admissibility of evidence.” People v. Beilke, 232 P.3d 146, 149 

(Colo. App. 2009). A trial court thus abuses its discretion only 

when its evidentiary ruling is manifestly arbitrary, unreasonable, 

unfair, or is based on a misunderstanding or misapplication of the 

law. People v. Thompson, 2017 COA 56, ¶ 91. 

¶ 22 Evidence is relevant if it has any tendency to make the 

existence of a fact of consequence more or less probable. CRE 401. 

All relevant evidence is admissible, except that proscribed by rule or 

law. CRE 402. CRE 403 permits exclusion of relevant evidence if 

its probative value is substantially outweighed by the danger of 

unfair prejudice, but because Rule 403 strongly favors 

admissibility, we afford evidence “the maximum probative value 

attributable by a reasonable fact finder and the minimum unfair 

prejudice to be reasonably expected.” People v. Gibbens, 905 P.2d 
11 

604, 607 (Colo. 1995); People v. James, 117 P.3d 91, 94 (Colo. App. 

2004). 

A. Exclusion of Evidence that Defendant Had Been Upset 

¶ 23 A law enforcement officer testified for the People that in all of 

their interactions, defendant had never seemed upset or remorseful 

about the victim’s death. Defendant sought to elicit rebuttal 

testimony, from a different officer, that defendant had been upset 

on at least one occasion and “[t]here were times when he was 

crying.” The People argued, and the court agreed, that the 

testimony should be excluded as self-serving hearsay. 

¶ 24 Defendant contends that because the prosecution opened the 

door to his demeanor, and the testimony did not involve hearsay, he 

was entitled to elicit this testimony as part of his right to present a 

defense. We agree that exclusion of the testimony was an abuse of 

discretion because the court misapplied the law in concluding that 

the evidence was hearsay. 

¶ 25 Hearsay is an out-of-court statement offered to prove the truth 

of the matter asserted. CRE 801(c). Nonverbal conduct may 

constitute hearsay if the conduct is intended to be communicative. 

CRE 801(a)(2). But a person’s demeanor is generally not hearsay. 
12 

See Markgraf v. State, 12 P.3d 197, 199 (Alaska Ct. App. 2000) 

(holding that a person’s apparent mental state is not routinely 

considered hearsay; collecting cases); see also People v. Acosta, 

2014 COA 82, ¶ 33 (“In Colorado, it is well established that a lay 

witness may give a summary opinion of another person’s 

behavior . . . or state of mind” if the witness personally observed the 

person’s behavior.). 

B. Admission of Victim’s Statements Under CRE 807 

¶ 26 Defendant contends that the court abused its discretion in 

admitting statements made by the victim to two witnesses prior to 

her death under the residual hearsay exception, which permits 

admission of hearsay evidence with circumstantial guarantees of 

trustworthiness. See CRE 807. He specifically argues that the 

prosecution did not meet its burden to prove the trustworthiness of 

the victim’s statements that (1) she “was being abused” by 

“[defendant],” in response to a friend’s question about her black eye 

and marks on her arms; and (2) defendant “had tried strangling 

her,” in response to another friend’s question about marks on her 

neck. 
13 

¶ 27 The trial court found sufficient indicia of reliability for the 

victim’s statements, which were testified to by friends who had 

personally witnessed defendant physically or verbally abusing the 

victim. The court found that the statements were nontestimonial, 

not motivated by a police investigation, and prompted by questions 

based on personal observations of the victim’s bodily injuries. It 

further found that one of the witnesses “was able to vividly recall 

the details of the abuse.” The court did not abuse its discretion in 

finding that these statements were sufficiently trustworthy. See 

People v. Jensen, 55 P.3d 135, 139 (Colo. App. 2001) (holding that 

trustworthiness could be determined from the nature and character 

of the statements, the relationship of the parties, the probable 

motivation of the declarant in making the statements, and the 

circumstances under which the statements were made). 

C. Admission of Other Acts Toward Intimate Partners 

¶ 28 After a pretrial hearing, the trial court ruled that two witnesses 

— defendant’s ex-wife and his former girlfriend — could testify 

about defendant’s specific acts while in their individual 

relationships. 

¶ 29 Specifically, defendant’s ex-wife would testify that 
14 

 in 1991, defendant assaulted her and told police officers 

that “if anybody here shows up dead, I’ll be the one who 

did it”; 

 he hit her on the head and the stomach on October 9, 

1993; and 

 he threw her on the floor and punched her in the face on 

December 17, 1996. 

These allegations were documented in contemporaneous police 

reports. 

¶ 30 Defendant’s ex-girlfriend would testify that 

 defendant used a bicycle wheel to break her car window 

on August 23, 2005; 

 he put his hands around her neck and covered her 

mouth in September 2005; and 

 he told her about a past girlfriend who “ended up dead.” 

The broken car window was documented in a contemporaneous 

police report, and the ex-girlfriend reported the other incidents to 

police when she was interviewed in 2013. 

¶ 31 Section 18-6-801.5(3), C.R.S. 2017, provides that evidence of 

other transactions is admissible in domestic violence cases like this 
15 

one “to show a common plan, scheme, design, identity, modus 

operandi, motive, or guilty knowledge or for some other purpose.” 

Upon an offer of proof, the court may admit such evidence after 

considering “whether the probative value of the evidence . . . is 

substantially outweighed by the danger of unfair prejudice to the 

defendant, confusion of the issues, or misleading of the jury . . . .” 

§ 18-6-801.5(4). 

¶ 32 The trial court held a hearing and issued a detailed order 

regarding the admissibility of this other act evidence. The court 

considered section 18-6-801.5 and CRE 404(b) and found that 

(1) defendant had committed the acts and (2) the evidence was 

related to a material fact with logical relevance independent of the 

prohibited inference of defendant’s bad character. The court 

concluded that the probative value of the evidence was not 

substantially outweighed by the danger of unfair prejudice, and was 

admissible. At trial, it provided an appropriate instruction limiting 

consideration of the evidence to only defendant’s motive, his intent, 

and whether he acted in accordance with a common plan. The 

record supports the court’s findings and conclusions. 

IV. Conclusion 
16 

¶ 33 We reverse defendant’s conviction and remand the case for a 

new trial. 

JUDGE WEBB and JUDGE FOX concur.