April 24, 2019

Colorado Court of Appeals: No Cause for Mistrial Where Defense Counsel Refused Remedies to Prosecutorial Misconduct

The Colorado Court of Appeals issued its opinion in People v. Reed on Thursday, August 1, 2013.

Prosecutorial Misconduct—Evidence—Testimony—Hearsay—Value of Property—Criminal Possession of a Financial Device—Aggravated Sentence—Federal Supervised Release.

Defendant John Benjamin Reed appealed the judgment of conviction entered on a jury verdict finding him guilty of second-degree murder; aggravated motor vehicle theft; criminal possession of a financial device (four or more devices) and two different names; and theft. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

Reed contended that the trial court abused its discretion in denying his motion for a new trial due to prosecutorial misconduct. Before trial, the court ruled that evidence of Reed’s prior convictions and parole status was inadmissible because its probative value was substantially outweighed by the danger of unfair prejudice. Although three of the prosecution’s witnesses mentioned Reed’s prior convictions during testimony and the prosecutor did not properly advise one of the three witnesses not to mention defendant’s criminal history, the prosecutor did not elicit the inadmissible evidence from the witnesses. Because any prejudice could have been remedied by a curative instruction or by striking the improper statement, Reed’s counsel refused these remedies. Therefore, the trial court did not abuse its discretion in denying Reed’s motion for a new trial on the basis of prosecutorial misconduct.

Reed contended that the trial court abused its discretion in allowing a witness to testify that Reed made threatening remarks to her several weeks before the murder. Although evidence of Reed’s threat had minimal, if any, relevance, any error in allowing the evidence was harmless because it did not substantially influence the verdict or affect the fairness of the trial proceedings.

Reed asserted that the trial court abused its discretion in admitting hearsay evidence under the statutory exception for establishing the value of property involved in a theft. Even if the co-owner’s testimony about the estimated cost to repair the car was inadmissible, any error in its admission was harmless, because additional evidence was presented that the value of the victim’s property damage exceeded $500.

Reed argued that the trial court erred in denying his motion for judgment of acquittal on the charge of criminal possession of a financial device (four or more devices) and two different names. There was insufficient evidence to support the conviction, because the prosecution failed to prove that one of the financial devices, a Visa gift card with no available funds, was capable of being used to obtain anything of value. Accordingly, this charge was reversed and the case was remanded for resentencing on this charge only.

Reed argued further that the trial court erred in aggravating his sentences because Reed was not on parole when he committed the charged crimes. Federal supervised release is effectively the same as parole for purposes of aggravating sentences. Thus, the trial court’s imposition of aggravated range sentences was affirmed.

Summary and full case available here.

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