Acosta v. Raemisch et al
MEMORANDUM OPINION AND ORDER The application is denied and the Clerk shall enter judgment dismissing this civil action, by Judge Richard P. Matsch on 3/30/17. (ktera)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 16-cv-02266-RPM
GABRIEL ALEXANDER ACOSTA,
RICK RAEMISCH, Exec Director, Colorado Department of Corrections, and
CYNTHIA COFFMAN, Attorney General for State of Colorado,
MEMORANDUM OPINION AND ORDER
An Information filed on April 23, 2004, in the District Court, Adams County,
Colorado, charged Gabriel Alexander Acosta and Chante Dillon with first degree murder
for the killing of Kimberly Dotson. A lawyer from the Adams County Public Defender’s
Office appeared for Acosta on April 28, 2014.
At a motions hearing held on November 12, 2014, defense counsel advised the
court of a potential conflict of interest because lawyers in that office had represented
two of the state’s witnesses, the victim and the only eye-witness Patricia Medina. The
court appointed advisory counsel for Acosta to discuss a waiver of those conflicts. At a
hearing held on November 23, 2014, that lawyer said he thought the conflicts were not
waivable but Acosta wanted to waive and the court accepted his waiver.
The court ordered separate trials with Dillon’s case going first and Acosta’s trial
immediately after her trial.
Patricia Medina failed to appear in response to subpoenas for two hearings. As
a result she was jailed. The court then ordered the taking of her deposition to preserve
her testimony for use at the two trials if she did not appear for them. The deposition for
Dillon was taken on December 15, 2004, with cross-examination by her appointed
counsel. Acosta’s public defender cross-examined Medina on December 22, 2014. At
the conclusion of that deposition an attorney for Medina requested her release which
the court granted, requiring that she post a $2,500 personal recognizance bond and
report to supervised release.
Upon her failure to report as ordered, an arrest warrant was issued on January
20, 2005, and Medina was returned to jail. She testified at Dillon’s trial in March, 2015.
Dillon was convicted of manslaughter.
At a hearing on Thursday, March 31, 2015, four days before the scheduled start
of Acosta’s trial on Monday, April 4, 2015, the public defender advised the court that a
non-waivable conflict had been discovered requiring his withdrawal.
The court accepted counsel’s statement that he could not ethically disclose the
conflict and granted his withdrawal. The court then engaged in a colloquy with Acosta
informing him that he had the choice of proceeding pro se or waiving his right to speedy
trial to permit new appointed counsel to prepare for trial which could not be done before
the trial to begin four days later. Given that choice, Acosta waived speedy trial and the
trial was rescheduled to begin on August 29, 2005.
On April 6, 2015, counsel for Medina asked the court to release her because of
the delay in the trial setting. The court granted that request, released her on a $500
personal recognizance bond and an order to report to supervised release the following
morning. She did not report as ordered. Acosta was not present and no lawyer
represented him at that hearing. New counsel for Acosta entered their appearance on
April 8, 2015.
An arrest warrant for Medina was issued on July 1, 2015. Medina was not
located and at Acosta’s trial her testimony was read to the jury from the deposition. It
had been videotaped but defense counsel requested the reading to enable him to
submit cross-examination from other transcripts.
Medina was arrested in Denver on unrelated charges on September 1, 2015, the
same day that the transcripts were read. The Denver Sheriff advised the Adams
County Sheriff of this arrest by faxes sent on September 2 and September 6, 2015.
In his Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254,
Acosta claims that he was denied two of the protections afforded by the Sixth
Amendment to the United States Constitution–the right to be confronted with the
witness against him and to have the assistance of counsel for his defense.
The first claim is that if he had been represented by a lawyer at the March 31,
2015, hearing on the withdrawal of the public defender he would not have had to waive
speedy trial and the trial could have proceeded with a much shorter delay keeping
Patricia Medina in jail until she testified at trial. The applicant contends that the trial
judge assumed that not enough time remained on the statutory speedy trial limit to give
newly appointed defense counsel an adequate opportunity to prepare for trial. That
assumption is said to be wrong because more than 50 days remained according to
There was no counsel for Acosta present to object to the court’s release of the
witness on April 6, 2015. The transcript of that hearing shows that the judge considered
it unfair to keep her in jail for another five months. If defense counsel could not have
persuaded the judge that her availability for trial was critical, at least he would have
assured that her release would have been conditioned upon more restrictions on her
liberty to enable the prosecution to present her at the trial.
On direct appeal the Colorado Court of Appeals denied the claim of a right to
counsel at the March 31, 2015, hearing for the stated reason that the trial court had
adequately advised Acosta of his rights at the hearing, in effect performing the duties of
a defense lawyer, and ruled that the April 6 release of witness hearing was a ministerial
stage of the criminal action not requiring representation of the defendant.
These rulings are subject to deference and can only be a basis for relief if they
are contrary to clearly established Federal law as determined by the Supreme Court or
resulted in a decision based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. 28 U.S.C. § 2254(d)(1) and (2).
It is clearly established law that the accused must be represented by counsel at
every critical stage of the proceedings, Holloway v. Arkansas, 435 U.S. 475 (1978).
The determination of what constitutes a critical stage of criminal proceedings appears to
be a mixed question of fact and law. In this case the availability of the only witness who
could testify from direct observation about the beating and suffocating of Dotson was
Patricia Medina. She had repeatedly failed to appear and keeping her in custody was
critical to the opportunity to confront her testimony with a live cross-examination. A
short continuance of the trial at the March 31 hearing would have ameliorated the
judge’s concern about holding her in jail. The importance of the right of confrontation of
this critical witness weighs heavily in favor of a finding that these were critical stages of
this prosecution and warrants a determination that the rulings of the Colorado Court of
Appeals were unreasonable determinations of fact and unreasonable applications of the
The use of deposition testimony is a denial of the Sixth Amendment right of
confrontation unless the witness is unavailable. The prosecution has the duty to use
reasonable efforts to bring the witness to trial. Here the Colorado Court of Appeals
found that condition was satisfied. That finding cannot be supported by the facts that
were presented in the record. Medina did not report to supervised release on April 7 as
required by the court at the April 6 hearing. No warrant for her arrest was obtained until
July. There was no attempt to locate Medina before the warrant was issued. In Cook v.
McCune, 323 F.3d 825, 835-36 (10th Cir. 2003) the Tenth Circuit Court of Appeals
identified the criteria for measuring good faith, reasonable efforts to produce a witness
for trial: (1) the more crucial the witness, the greater the effort required to secure the
witness’s attendance; (2) the more serious the crime for which defendant is being tried,
the greater the effort the prosecution should put forth to produce the witness a trial; (3)
where a witness has special reason to favor the prosecution, the defendant’s interest in
confronting the witness is stronger; and (4) the prosecution must make the same type of
effort to locate and secure the witness for trial that it would make if the prior testimony
were not available. The Colorado Court of Appeals accepted these criteria as
applicable to this case and summarized the evidence produced at the hearing held by
the trial court as follows:
At an evidentiary hearing, the trial court inquired into the
prosecution’s efforts to locate and produce P.M. for trial. Two
witnesses testified for the People: A.D., an investigator for the district
attorney’s office, and M.L., a detective with the Westminster Police
Department. We conclude the testimony of these witnesses supports
the trial court’s finding that the People made reasonable efforts to
secure P.M.’s trial attendance, and that she was unavailable.
A.D. testified that she was assigned to locate and hand serve
P.M. To this end, A.D. went to P.M.’s prior known address, the address
listed on a traffic citation P.M. received, and visited the post office
nearest P.M.’s last known address to see if P.M. filed a change of
address form. Despite these efforts, A.D. testified that she was unable
to locate P.M.
M.L. testified about his knowledge of P.M.’s living situation and
his prior conversations with P.M. Information from various sources
indicated that she had no permanent residence and lived “on the
streets” in the vicinity of East Colfax Avenue in Denver. P.M. told M.L.
that there was no location where he would be able to contact her, and
that the best way to contact her was through her grandfather. M.L.
stated that he had a good rapport with the grandfather, who was “the
one person from [P.M.’s] family who had been cooperative with the
police. M.L. stated he had had “at least a half-dozen bi-weekly
conversations with the grandfather, seeking to locate P.M., the most
recent of which was two days before the hearing. M.L. had told the
grandfather that if P.M. contacted him, he was to call police and try to
hold her so that police could pick her up.
M.L. also testified that he enlisted the aid of the Special Crime
Attack Team (SCAT) unit of the police to search for P.M. The SCAT
unit looked for her at the same Denver address at which she had
earlier been arrested. They also looked for her on the streets in areas
she was known to frequent. M.L. also made a search for her along
The determination that these efforts were reasonable is an unreasonable
determination of the facts. The prosecutor should have requested more restrictions at
the release hearing. The efforts to locate her should have begun immediately after her
failure to appear on the following morning. An arrest warrant should have been
obtained long before July 1. With an outstanding warrant police departments in the
Denver metropolitan area would have been looking for her.
Given her record it would have been reasonable to check the jails in the area on
the high probability that she would have been picked up for a street crime as, indeed
she was by Denver Police on September 1 while the trial was still in progress.
Upon the record presented here, the Applicant has established his asserted
violations of the Sixth Amendment. Acosta contends that these are structural errors
requiring reversal of his conviction. The Supreme Court said that. See citations in
Satterwhite v. Texas, 486 U.S. 249 at 257 (1987). It has also recognized exceptions to
that general rule as it did in that case. Some Sixth Amendment right to counsel
violations are amenable to harmless error analysis as the Tenth Circuit held in U.S. v.
Lott, 433 F.3d 718 (2006).
The difference is determined by asking whether the errors can be said to
undermine confidence in the jury’s verdict. That is difficult. Medina’s credibility is in
doubt as shown by the impeaching cross-examination read to the jury and by the fact
that she recanted her testimony in a post verdict hearing. There was other testimony at
the trial that was supportive of the verdict, including testimony from Favian Avecedo and
Ben Martinez that Acosta admitted his guilt.
The Court of Appeals addressed the failure to have an adequate opportunity to
effectively cross-examine Patricia Medina under a harmless error analysis and found
any error to be harmless beyond a reasonable doubt. While the court did not
specifically refer to a Sixth Amendment violation the denial of that opportunity resulted
from the violations presented here. The state court reviewed the entire record in its
determination that there was adequate evidence to support the conviction even if
Medina’s testimny is disregarded. That is questionable given the details she gave as to
how the killing was done and the focus on Acosta as the primary participant. Under 28
U.S.C. § 2254(e)(1) the determination of a factual issue made by the state court must
be presumed to be correct and the applicant has the burden of rebutting the
presumption of correctness by clear and convincing evidence. The sufficiency of the
evidence is a factual question and Acosta has not met that burden.
Accordingly, it is
ORDERED, that the application is denied and the Clerk shall enter judgment
dismissing this civil action.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253, the applicant has made a substantial showing of
violations of the Sixth Amendment and that reversal is required. Reasonable jurists
could debate this Court’s determination to the contrary. Thus, a certificate of
appealability is granted.
DATED: March 30, 2017
BY THE COURT:
s/Richard P. Matsch
Richard P. Matsch, Senior Judge
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