May 22, 2019

Colorado Court of Appeals: Defendant Who Insisted on Proceeding at Hearing to Preserve Speedy Trial Rights, Despite Counsel’s Request for Continuance, Made Voluntary Waiver of Better-Prepared Counsel

The Colorado Court of Appeals issued its opinion in People v. Bryant on Thursday, March 14, 2013.

Unlawful Sexual Contact by Use of Force—Constitutionality of Sexually Violent Predator Designation—Effective Assistance of Counsel—Use of Force Evidence.

Defendant Joseph Bryant appealed the judgment of conviction entered on a jury verdict finding him guilty of two counts of unlawful sexual contact by use of force. He also appealed his designation as a sexually violent predator (SVP). The judgment was affirmed.

Evidence at trial showed that as 17-year-old A.M. and her friend were about to walk into a Starbucks, Bryant attacked A.M. by wrapping a hand around her neck and grabbing her vaginal area with his other hand. He held her for about eighteen seconds and tried to pull her away from the entrance. She screamed and struggled and then jammed her elbow into his stomach. He released her and ran away.

That evening, Bryant approached D.P. at a bus stop. He “bumped” into her, stared at her, asked her age, and then followed her onto the bus. When D.P. got off the bus, Bryant followed her off the bus. She decided to wait at the bus stop, because it was well-lit and there were stores nearby. Bryant waited with her for thirty minutes. He offered several times to pay her $300 if she would accompany him to a motel room, and she declined. He then grabbed her breasts four to six times and her vagina once. D.P. asked him to stop and tried pushing him away. He grabbed her hand and put it on his crotch.

Bryant followed her onto a second bus and off that bus. D.P. asked him to stop following her. He grabbed her breasts twice, and she pushed him away. Bryant walked away and was arrested later that evening.

Bryant was charged with two counts of unlawful sexual contact by force and was found guilty by a jury. The trial court made a preliminary finding that he was an SVP and sentenced him to five years to life in the Department of Corrections on each conviction, to run consecutively. The court, after a hearing, made a final determination that Bryant was an SVP.

On appeal, Bryant argued he was deprived of his right to effective assistance of counsel when the court denied his counsel’s motion to continue the trial two weeks beyond the Uniform Mandatory Disposition of Detainers Act (UMDDA). The Court of Appeals found he waived that right. On November 27, 2009, Bryant’s counsel learned his trial had been rescheduled from December 15 to December 1 to comply with Bryant’s speedy trial rights under the UMDDA. Counsel objected to the earlier trial date, but Bryant insisted on a speedy trial despite the judge’s warnings against proceeding pro se. Bryant decided to proceed pro se, and counsel assumed she had been removed from the case.

On December 1, counsel appeared with Bryant and explained that Bryant did not want to proceed pro se. She requested a two-week continuance because she was not prepared for trial. The court found the request reasonable, but then engaged in a colloquy with Bryant wherein Bryant ultimately chose to proceed with unprepared counsel rather than waive his UMDDA rights. The Court found the record reflected that Bryant made a voluntary, knowing, and intelligent waiver of better-prepared counsel in favor of his right to a speedy trial under the UMDDA. Therefore, there was no error.

Bryant also argued there was insufficient evidence to show he caused each victim’s submission by force because there was no evidence that he used force apart from the unlawful contact, and the victims were able to escape. The Court disagreed. The statute requires evidence of physical force, which is “force applied to the body.” The fact that the victims were able to escape does not render insufficient the evidence that showed Bryant used physical force.

Bryant further contended that SVP evaluation procedures violate one’s right to remain silent, because offenders who do not participate in the SVP assessment interview are evaluated using an alternative scale that increases the likelihood they will be designated SVPs. This argument presumes the Fifth Amendment applies to the SVP evaluation procedures, but it does not. The Fifth Amendment privileges apply during sentencing, but the SVP designation is not part of a defendant’s sentence. Its purpose is not to punish the defendant, but to protect the public and aid law enforcement.

The Court also rejected Bryant’s equal protection argument. Equal protection challenges require that the people allegedly subject to disparate treatment be similarly situated. Bryant’s argument didn’t meet this threshold test because offenders who participate in the interview are not similarly situated to offenders who do not participate.

Summary and full case available here.

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