August 21, 2019

Colorado Court of Appeals: Amendment of Information to Add Crime of Violence Designation would Require Proof of Additional Element and Carry Harsher Sentence

The Colorado Court of Appeals issued its opinion in People v. Palmer on Thursday, March 22, 2018.

Murder—Arson—Amendment of Information—Crime of Violence—Crim. P. 7(e)—Discovery Violation.

When Palmer found out that the man she had been dating was having sex with another woman, she set fire to a bag of his things outside the front door of his apartment. The fire spread from the bag, and soon the entire apartment complex was ablaze. Palmer was charged with five counts of attempted first degree murder and one count of first degree arson. After the trial began, the trial court granted the prosecution’s motion to amend the information to add a crime of violence designation. The amended information alleged that Palmer committed arson by means of a deadly weapon (a lighter and lighter fluid). Because of the amendment, Palmer faced a longer prison sentence if convicted. The jury acquitted Palmer of attempted murder but convicted her of first degree arson and the lesser nonincluded offense of fourth degree arson. The jury also found that first degree arson was a crime of violence because Palmer used a deadly weapon.

On appeal, Palmer contended that the trial court abused its discretion by allowing the prosecutor to amend the information. She argued that the amendment was one of substance and thus had to be made before trial. Crim. P. 7(e) permits amendments only as to form once trial has begun and provides that the trial court may reject an amendment during trial if it charges an additional or different offense or prejudices the defendant’s substantial rights. Here, the amendment required proof of an additional element, use of a deadly weapon, and carried a harsher minimum and maximum sentence, so the trial court abused its discretion in granting the motion to amend once trial was underway.

Palmer also argued that the trial court should have granted her motion for mistrial because the prosecution failed to timely disclose two fire investigators’ reports. During testimony, the prosecution discovered and promptly disclosed two previously undisclosed reports from the fire lieutenants. The trial court found that the discovery violation was inadvertent. Instead of granting a mistrial, the trial court prohibited the prosecution from calling a second fire lieutenant and permitted Palmer to re-examine the first fire lieutenant based on the newly discovered information. The trial court did not abuse its discretion in denying Palmer’s motion for mistrial and imposing other remedies for the discovery violation.

The sentence was reversed and the case was remanded for resentencing. The judgment was affirmed in all other respects.

Summary provided courtesy of Colorado Lawyer.

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