July 22, 2014

Colorado Court of Appeals: Time Spent in Interlocutory Appeal Properly Excluded from Speedy Trial Time Period

The Colorado Court of Appeals issued its opinion in People v. Curren on Thursday, May 8, 2014.

Interlocutory Appeal—Speedy Trial—Attorney–Client Privilege—Waiver—Rebuttal Witness.

In 2002, defendant was charged with two counts of first-degree murder after deliberation, two counts of felony murder, two counts of conspiracy to commit first degree murder, two counts of conspiracy to commit aggravated robbery, and two counts of aggravated robbery. The jury convicted defendant on the two felony murder counts and one count of aggravated robbery. However, defendant’s convictions were vacated, and he was granted a new trial because his trial attorney had represented him while having an actual conflict of interest. The prosecution filed an appeal to challenge this ruling, which tolled the speedy trial period. The appeal was denied, and the jury convicted defendant of accessory after the fact to first-degree murder.

On appeal, defendant asserted that the trial court violated his statutory and constitutional rights to a speedy trial. For purposes of CRS § 18-1-405(6)(b), an appeal attacking a dismissal of one or more counts is considered interlocutory and the period of delay attributable to the appeal is properly excluded from the speedy trial period. Here, the prosecution’s appeal was not frivolous and addressed whether the post-conviction court properly vacated defendant’s convictions for first-degree murder and aggravated robbery. Further, nothing in Crim.P. 35(c)(3)(V) requires the prosecution to seek a stay to toll the speedy trial period. Finally, defendant suffered no prejudice from the delay. Therefore, the speedy trial period was tolled during the prosecution’s appeal, and defendant’s statutory and constitutional speedy trial rights were not violated.

Defendant next asserted that the trial court violated his rights to remain silent, to testify, to counsel, and to attorney–client privilege by allowing the prosecution to call his first trial attorney to testify against him at his second trial. Here, defendant waived the attorney–client privilege by testifying about his communications with his previous counsel, which opened the door to rebuttal testimony regarding that representation. The prosecution called defendant’s previous counsel to testify as a rebuttal witness to refute certain parts of defendant’s testimony in his case-in-chief. Therefore, the trial court did not abuse its discretion in allowing defendant’s first trial attorney to testify against him as a rebuttal witness at his second trial.

Summary and full case available here.

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