August 21, 2019

Colorado Court of Appeals: Three Counts of Perjury Arose from Essentially Identical Statements During Same Interrogation So Double Jeopardy Applied

The Colorado Court of Appeals issued its opinion in People v. Zadra on Thursday, October 24, 2013.

Perjury—False Reporting—Official Misconduct—Discovery Violations—Motion to Suppress Statements—Verdict Forms—Multiplicitous—Double Jeopardy.

Defendant appealed the judgment of conviction entered on jury verdicts finding her guilty of three counts of official misconduct, one count of false reporting, and seven counts of perjury. She also appealed her sentence. The judgment and sentence were affirmed in part, reversed in part, and vacated in part.

There were ten contentions before the Court of Appeals. The Court affirmed on all counts except counts 9 and 10, which were merged into the conviction of count 6.

Defendant first contended that the district court erred by denying her counsel’s motions to dismiss the case as a sanction for the prosecution’s discovery violations. Because there was no evidence that the prosecution’s conduct was willful and a continuance was granted to allow defendant sufficient time to review the late discovery, the court did not abuse its discretion in denying defendant’s motion to dismiss the case.

Defendant contended that the district court erred by denying her motion to suppress statements she made in two interrogations. Defendant voluntarily came to the police station unescorted, signed a written consent for the polygraph examination, and was free to leave at any time. Therefore, the interrogation was not custodial and her statements were voluntary.

Defendant contended that there was insufficient evidence to support her convictions. Defendant argued that the wording of the verdict forms assumed that she had committed the alleged acts giving rise to the charges, constituting plain error. In light of the other instructions and the overwhelming evidence, the presumed errors did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.

Defendant argued that her seven perjury convictions and one of her convictions for official misconduct are multiplicitous and therefore violate constitutional prohibitions against double jeopardy. Because counts 6, 9, and 10 were established by identical proof, these counts were multiplicitous and the convictions on and sentences for all three counts were reversed.

Summary and full case available here.

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