The Colorado Court of Appeals issued its opinion in People v. Davis on April 12, 2012.
Colorado Organized Crime Control Act—Conspiracy—Assault—Solicitation—Evidence—Statute of Limitations—ExpertTestimony—Habitual Offender—Consecutive Sentence.
Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of violating the Colorado Organized Crime Control Act (COCCA), conspiracy to commit assault in the second degree, assault in the second degree, and two counts of solicitation of second-degree assault. He also appealed his conviction as a habitual criminal and his 108-year sentence. Defendant’s convictions were affirmed, the sentence was affirmed in part and vacated in part, and the case was remanded to the trial court.
Defendant contended there was insufficient evidence to support his convictions arising from the assault on C.H. and his conviction for soliciting T.M. Because the evidence, including testimony about defendant’s role as the leader of the 211 gang and defendant’s encoded note to T.M. ordering the assault on C.H., supported a finding that defendant ordered the assault on C.H., it was sufficient to establish that defendant intentionally persuaded his fellow gang members to assault C.H. Therefore, the evidence was sufficient to support his conviction for solicitation. Additionally, there was sufficient evidence to prove that defendant conspired with other 211 Crew members to commit second-degree assault on C.H.
Defendant contended that a criminal act that can no longer form the basis of a criminal count because its statute of limitations has expired cannot be used as evidence to support a COCCA conviction. To establish a COCCA violation, the prosecution must show that two or more acts of racketeering activity occurred within a ten-year period. As long as one predicate act of racketeering activity falls within the relevant statute of limitations, other predicate acts occurring within the ten-year period before that act was committed may be used to establish a COCCA violation, even if the earlier acts would be time-barred if separately prosecuted. Here, the prosecution presented four predicate acts that also gave rise to separate counts (namely, the three acts involving the assault on C.H. and the solicitation of T.M). Because there was sufficient evidence to support defendant’s convictions for these acts, there is sufficient evidence to support defendant’s COCCA conviction. Additionally, evidence of the nine predicate acts occurring outside the limitations period established elements of defendant’s COCCA violation and were properly admitted.
Defendant contended that the trial court erred by qualifying a Denver police detective as an expert. At trial, the prosecution designated the detective as an expert witness with specialized knowledge of 211 Crew hierarchy, communication methods, and ideology. At the pretrial hearing, the trial court found that the detective possessed specialized knowledge that was relevant and that would be helpful to the jury. Furthermore, any doubts about the accuracy of the detective’s interpretation of the code, or his lack of experience cracking coded messages, go to the weight of his testimony, not its admissibility. Therefore, the trial court did not abuse its discretion by qualifying the detective as an expert on the 211 Crew.
Defendant also contended that his convictions should be reversed because his co-defendants’ testimony that they had pleaded guilty to COCCA violations was offered as substantive evidence of his guilt. It is proper, however, to use this type of evidence to impeach the credibility of a co-defendant. Therefore, there was no error.
Defendant contended that the trial court erred in determining that he was a habitual offender. Defendant argued that (1) the trial court accepted evidence of his prior convictions in the form of “pen packs” in violation of his right to confrontation; and (2) his right to a jury trial was violated because the trial court rather than a jury determined his guilt. Defendant, however, failed to object to either the admission of the pen packs or the lack of a jury trial. Therefore, the Court of Appeals reviewed only for plain error, and found none.
Defendant further contended and the People agreed that the trial court erred by concluding that it was required by law to order that defendant’s COCCA sentence be served consecutively to the sentences he already was serving. There was no requirement for consecutive sentencing under these circumstances. Therefore, defendant’s COCCA sentence was vacated and the case was remanded to the trial court to determine, in its discretion, whether that sentence should run consecutively to or concurrently with the sentences for the three crimes to which he pleaded guilty in 1995.
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