The Colorado Court of Appeals issued its opinion in People v. Krueger on May 10, 2012.
First-Degree Murder—Substitute Counsel—Advisory Counsel—Search Warrant—Prosecutorial Misconduct—Evidence—Felony Convictions—Mistrial.
Defendant Ryan Krueger appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder and conspiracy to commit first-degree murder. The Court of Appeals affirmed the judgment of the district court.
Defendant contended that the district court erred by declining to appoint substitute counsel because he had a conflict with the assigned public defenders, thus making his waiver of his right to counsel ineffective. However, a criminal defendant does not have either a right to review all discovery materials obtained by his counsel or a constitutional right to testify at a pretrial suppression hearing where his counsel decides not to call him as a witness. The Court therefore determined that the district court did not err in finding that defendant had failed to establish good cause warranting substitution of counsel on this basis.
Defendant also contended that the district court erred by (1) declining to continue the first trial and appoint advisory counsel to represent him; and (2) failing to advise him that it could appoint advisory counsel to represent him in the second trial. Both contentions, however, are premised on his assertion that his waiver of the right to counsel was ineffective. Because his waiver was effective, these arguments were rejected.
Defendant further argued that the district court erred by admitting wiretapped phone conversations and cell phone records because the search warrants were based primarily on stale information. The search warrants, however, were not for tangible evidence that could have been destroyed or removed since the murder. Therefore, the affidavits alleged sufficient facts that a person of reasonable caution would believe that communications about the murder would soon take place on the phones for which records and wiretaps were being sought.
Defendant also argued that the district court abused its discretion by allowing prosecutorial misconduct. The Court determined that the district court did not abuse its discretion by allowing the prosecutor’s remarks that they could not subpoena a witness to testify and that a question is not evidence, regardless of whether an attorney or a pro se defendant asks it.
Defendant claimed the district court abused its discretion by allowing the prosecution to introduce evidence of his felony convictions to impeach his statements introduced through cross-examination of another witness. However, because defendant got his own exculpatory statements into evidence through another witness, he opened the door to introduction of his felony convictions.
Defendant next contended that the district court abused its discretion by denying his motions for a mistrial after (1) his wife testified that she had met him in jail before trial, and (2) two witnesses implied that he had been tried previously for the murder. The prosecutor asked whether (not where) defendant’s wife had met with defendant on the specified dates. Additionally, neither witness testified that defendant previously had been tried for the charges then at issue. Thus, the drastic remedy of a mistrial was not warranted.
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