August 14, 2018

Colorado Court of Appeals: Trial Court’s Late Imposition of Drug Offender Surcharge Did Not Violate Double Jeopardy

The Colorado Court of Appeals issued its opinion in People v. Yeadon on Thursday, July 27, 2018.

Criminal Law—Driving Under Restraint—Failure to Report an Accident or Return to the Scene—Possession—Methamphetamine—Evidence—Prosecutorial Misconduct—Drug Offender Surcharge—Illegal Sentence—Double Jeopardy.

Police officers responded to a rollover crash where the driver had abandoned the vehicle. The car had been reported stolen two weeks earlier. After an expert matched Yeadon’s DNA to the deployed driver’s airbag in the crashed vehicle, a jury found Yeadon guilty of driving under restraint, failure to report an accident or return to the scene, and possession of less than two grams of a controlled substance (methamphetamine), which was found in the crashed vehicle. The district court sentenced Yeadon to 16 months in the custody of the Department of Corrections and, 11 days later, imposed a $1,250 drug offender surcharge.

On appeal, Yeadon contended that the prosecution presented insufficient evidence to support his conviction for possession. Here, the CBI expert testified that Yeadon was the major source of the DNA found on the driver’s side airbag and that such evidence suggested that he was sitting in the driver’s seat when the airbag deployed. Therefore, the prosecution presented sufficient evidence that Yeadon was the driver of the car at the time of the crash. Further, the evidence showed that Yeadon was in close proximity to the bag of methamphetamine and the scale found on the front seat, and that he fled from the accident. There was sufficient evidence to support Yeadon’s conviction for possession of less than two grams of a controlled substance.

Yeadon also argued that certain statements made by the prosecutor during closing argument constituted misconduct. However, the prosecution’s comments were reasonably supported by the evidence and did not improperly affect the verdict.

Yeadon further argued that the district court’s late imposition of the drug offender surcharge violated his right against double jeopardy. Because C.R.S. § 18-19-103(1) mandates that the drug offender surcharge be imposed in all cases in which a defendant is convicted of a drug offense, failure to impose the surcharge renders a sentence illegal. Yeadon’s sentence did not include the surcharge and was not accompanied by a district court finding of his financial inability to pay, so the sentence was contrary to the statute and illegal, and the district court was required to correct defendant’s sentence by including the surcharge. The late imposition of the surcharge was a permissible correction to an illegal sentence and thus did not violate Yeadon’s double jeopardy rights.

The judgment and sentence were affirmed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Double Jeopardy Implicated where Defendant Convicted of DARP at First Trial and ADARP at Second Trial

The Colorado Court of Appeals issued its opinion in People v. Wambolt on Thursday, June 28, 2018.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Driving Under Restraint—Driving After Revocation Prohibited—Driving While Ability Impaired—Lesser Included Offense—Merger—Double Jeopardy—Motion to Suppress—Illegal Arrest—Miranda—Fifth Amendment.

Defendant was charged with aggravated driving after revocation prohibited (ADARP), driving under the influence (DUI), and driving under restraint (DUR). During a first trial, the jury was instructed on the elements of driving after revocation prohibited (DARP) and given a special interrogatory verdict form on the ADARP charge. The jury returned guilty verdicts on DARP and DUR, but hung on the DUI charge, and thus did not complete the ADARP special interrogatory. Defendant was retried in a two-phase trial. In the first phase, the jury returned a guilty verdict on driving while ability impaired (DWAI), a lesser included offense of DUI. In the second phase, the jury completed a special interrogatory finding that the prosecution had proved the ADARP charge. The trial court entered convictions for ADARP, DUR, and DWAI.

On appeal, defendant contended that he was unconstitutionally tried twice for the same offense when he was retried on the ADARP charge after the first jury had convicted him of DARP. Here, defendant was effectively tried for DARP twice and he was not properly tried for ADARP. Thus, under the circumstances of this case, defendant was unconstitutionally tried twice for the same offense. This error was obvious and substantial and significantly undermined the reliability of defendant’s ADARP conviction.

Defendant also argued that the trial court plainly erred in entering convictions for DUR and DARP because those convictions should have merged. DUR is a lesser included offense of DARP. Thus, the trial court erred in entering both convictions. However, because the relevant law in this area has undergone significant recent change, the error here was not plain because it was not obvious. The trial court did not plainly err in entering the DUR and DARP convictions.

Defendant further contended that the trial court erred in denying his motion to suppress statements he made after being detained. He argued that his statements resulted from an unlawful detention and were taken in violation of his Miranda rights. Here, although the officer found defendant compliant and “very easy to get along with,” he handcuffed him at gunpoint and placed him in the back of the patrol car. Defendant thereafter was removed from the patrol car, his handcuffs were removed, and he was read his Miranda rights and voluntarily waived them. Although defendant was unconstitutionally arrested, the statements were admissible because they were sufficiently attenuated from the unlawful arrest.

The judgment of conviction for DWAI and DUR was affirmed, the conviction for ADARP was vacated, and the case was remanded for the trial court to reinstate the DARP conviction and correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Grand Jury Foreman’s Failure to Sign Indictment Did Not Deprive Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Tee on Thursday, June 14, 2018.

Criminal Procedure—Grand Jury—Attempt to Influence a Public Servant—Jury—Predeliberation—Waiver—Evidence.

Tee was convicted of multiple charges, including two counts of attempting to influence a public servant.

On appeal, Tee contended that because the indictment received by the district court did not contain the signature of the grand jury foreperson, it did not confer jurisdiction and all charges must be dismissed. However, the signature of the foreperson need not be provided to the district court, and the court had jurisdiction.

Tee also contended that because two jurors engaged in predeliberation, he is entitled to a new trial. Here, defense counsel waived any error as to predeliberation.

Tee further argued that the two convictions for attempting to influence a public servant must be vacated because there was insufficient evidence supporting the convictions. Here, Tee was convicted of two counts of attempting to influence a public servant based on evidence that he made false reports of car accidents. The evidence was sufficient to support one count of attempting to influence a public servant where Tee provided information in person to a police officer who created a report based on what Tee had told him. However, the evidence was insufficient as to the other count where Tee filled in an accident report form on a computer terminal at a kiosk in the police department, because it did not show that Tee was attempting to influence a public servant.

Lastly, the attorney general conceded that the trial court violated Tee’s double jeopardy rights because it orally announced a 12-year sentence but the mittimus showed an 18-year sentence. The mittimus also incorrectly showed a conviction on a count that was dismissed.

The judgment was vacated as to one count and otherwise affirmed. The case was remanded to correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Attempted Murder Conviction Must Be Vacated When Arising from Same Event as Actual Murder Conviction

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, May 31, 2018.

Criminal Law—Murder—Accessory—Fifth Amendment—Double Jeopardy—Undisclosed Alibi Defense—Mistrial—Testimonial Hearsay Statements—Doctrine of Forfeiture by Wrongdoing—Residual Hearsay Exception—Complicity Jury Instruction—Lesser Included Offense—Transferred Intent.

Jackson and his friends were members of “Sicc Made,” a subset of the Crips gang. Jackson drove a vehicle to the apartment of E.O., a rival gang member, with the intention of shooting E.O. Victim Y.M. lived in E.O.’s apartment complex. Believing Y.M. was E.O., another “Sicc Made” gang member got out of Jackson’s car, walked over to an SUV, and shot Y.M. twice in the head, killing him instantly. When they realized they had killed the wrong man, the men turned and fired numerous shots into E.O.’s apartment. Defendant was convicted of first degree murder after deliberation, attempted first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory.

On appeal, Jackson first challenged the court’s decision to declare a mistrial after cross-examination of his ex-wife revealed an undisclosed alibi defense. A defendant may not elicit alibi evidence, absent good cause, without first complying with the Crim. P. 16(II)(d) alibi disclosure requirements. It is undisputed that the defense provided no notice to the prosecution of the alibi, despite receiving it a month before trial. The defense decided not to disclose the new information but to elicit it on cross-examination in violation of Rule 16. Further, the trial court carefully considered the parties’ arguments and its available options and was in the best position to assess the prejudicial impact. The trial court did not abuse its discretion in deciding to declare a mistrial.

Jackson next contended that the trial court erroneously admitted testimonial hearsay statements of uncharged co-conspirator Walker to law enforcement officials under the doctrine of forfeiture by wrongdoing and under the CRE 807 residual hearsay exception. However, (1) the prosecution proved by a preponderance of the evidence that Jackson forfeited his right to confront Walker because he caused Walker’s refusal to testify, and (2) the trial court did not abuse its discretion in admitting Walker’s statements under CRE 807.

Jackson also contended that the complicity instruction was erroneous. The jury instruction defining first degree murder after deliberation, when read with the complicity instruction, accurately required the jury to find that Jackson was aware that the shooter acted after deliberation and with the intent to cause the death of the victim. Accordingly, there was no error in the complicity instruction.

Finally, Jackson contended that the trial court erred in imposing two convictions and consecutive sentences for his attempted murder convictions. When a defendant attempts to deliberately kill one person but mistakenly kills a different person and is convicted of both the attempted murder of the intended victim and the actual murder of the unintended victim, the attempted murder conviction must be vacated because it is a lesser included offense of the murder conviction. Here, the undisputed evidence shows that the shooter and Jackson intended to kill E.O. and mistakenly killed Y.M., believing him to be E.O. Under the doctrine of transferred intent, Jackson’s specific intent to kill E.O. transferred to Y.M. and made him criminally liable for Y.M.’s death. Therefore, the attempted murder of E.O. after deliberation is a lesser included offense of the murder after deliberation of Y.M. The trial court’s error was obvious, substantial, and undermined the fairness of the proceeding.

The convictions of first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory were affirmed. The judgment for attempted first degree murder after deliberation was vacated and the case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Three Stalking Convictions for Single Offense Must Be Merged

The Colorado Court of Appeals issued its opinion in People v. Wagner on Thursday, May 18, 2018.

Stalking—Merger—Evidence—Unanimity Jury Instruction—Double Jeopardy.

Wagner was arrested and charged with three counts of stalking his ex-wife. He was found guilty on all counts and sentenced to 90 days in jail on each count with all jail terms to run consecutively, and six years of probation on each count with all probation terms to run consecutively.

On appeal, the People conceded that two of Wagner’s stalking convictions should have merged at sentencing. The court of appeals determined that the People did not prove factually distinct instances of conduct sufficient to support multiple stalking convictions. The Double Jeopardy Clauses of the U.S. and Colorado Constitutions required that defendant’s three stalking convictions merge. The court concluded that defendant was charged with and convicted of multiplicitous counts and it was plainly erroneous for the trial court to enter three stalking convictions.

Wagner argued that there was insufficient evidence to support all three of his convictions. However, the evidence was sufficient to show both that Wagner’s conduct would have caused a reasonable person serious emotional distress and that it caused the victim serious emotional distress. Additionally, the evidence was sufficient for the jury to find that Wagner made credible threats.

Wagner further contended that the trial court erred in rejecting a defense-tendered unanimity jury instruction or, in the alternative, failing to require the prosecution to elect between the alleged credible threats. The prosecution presented evidence of numerous occasions on which Wagner contacted and followed the victim, any number of which could have supported a stalking conviction. The defense did not argue that Wagner did not commit the acts about which the victim and witnesses testified, and the jury would be likely to agree either that all of the acts occurred or that none occurred. Therefore, the prosecution was not required to elect the acts on which it was relying to prove that Wagner had made a credible threat, nor was the trial court required to give a unanimity instruction.

Two of the counts were vacated. The case was remanded for the trial court to merge the convictions and correct the mittimus. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Pattern of Abuse Convictions were Sentence Enhancers to Substantive Acts

The Colorado Court of Appeals issued its opinion in People v. Wiseman on Thursday, April 20, 2017.

Sexual Assault on a ChildIllegal SentencingConsecutive Sentences—Concurrent Sentences—Sentence EnhancersColorado Sex Offender Lifetime Supervision Act of 1998—Double Jeopardy—Due Process—Laches—Speedy Sentencing—Cruel and Unusual Punishment.

A jury found Wiseman guilty of acts constituting sexual assault on a child under the age of 15 by one in a position of trust. Wiseman received four sentences, three of which were to run consecutively, and one to run concurrent to two others. While Wiseman was incarcerated in the Department of Corrections (DOC), the district court, at the DOC’s request, reviewed his sentence and determined that consecutive terms were mandated by law on all four of his sentences. The effect of the court’s order was to increase Wiseman’s sentence to 46 years imprisonment.

On appeal, Wiseman contended that he was subject to, at most, two convictions and sentences in this case, and that the district court erred in determining that consecutive sentences were statutorily required. Counts seven and eight did not encompass “additional” substantive crimes for which one or more separate sentences could be imposed; they acted as mere sentence enhancers for counts one and three. Consequently, in entering separate convictions and sentences for counts seven and eight, the district court erred. As to the types of sentences, concurrent sentencing is required when offenses are supported by identical evidence. Here, Wiseman’s convictions were not supported by identical evidence and arose out of different incidents. Under the circumstances, Wiseman was subject to concurrent or consecutive sentencing, in the court’s discretion. The district court, therefore, erred in concluding that it was statutorily required to impose consecutive sentences.

Wiseman requested that the case be remanded for reinstatement of the original judgment of conviction and sentences. But Wiseman’s crimes were punishable by indeterminate sentencing under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). Thus, Wiseman’s original and revised sentences were both illegal, and a remand for the imposition of a “legal” indeterminate sentence under SOLSA is required: Wiseman must be sentenced for each conviction to an indeterminate sentence having a minimum term of a certain number of years and a maximum term of life imprisonment.

Wiseman objected to the imposition of another sentence that could expose him to the potential of serving life in prison. He asserted that imposing an indeterminate sentence at this point in time, over 15 years after he was initially sentenced, violated double jeopardy, due process, laches, speedy sentencing, and cruel and unusual punishment principles. Because Wiseman was put on notice by the statute that his offense would be subject to an indeterminate sentence, he lacked a legitimate expectation of finality in his original sentence. Thus, correcting the illegal sentence does not violate double jeopardy. There is no due process violation because Wiseman has no fundamental right to avoid serving a lawful sentence of which he should have been aware, and the State of Colorado has legitimate interests in the correct application of its laws and avoiding the precedential risk of irregular enforcement of its laws. The doctrine of laches is not applicable in the context of a Crim. P. 35(a) motion to correct an illegal sentence. The court of appeals found no basis on which Wiseman may assert that resentencing him would violate a constitutional right to speedy sentencing under Crim. P. 32(b). Lastly, the court disagreed that the imposition of a legal, indeterminate sentence would constitute cruel and unusual punishment because (1) Wiseman’s premise that he had an expectation that he would be immediately released on parole under his original sentence is wrong, and (2) such a claim cannot be predicated on the negligence of executive agencies or the courts in failing to impose or correct a sentence at a much earlier date.

The sentence was vacated and the case was remanded with instructions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Court Procedure Met Joinder Statute’s Purpose of Preventing Successive Prosecutions

The Colorado Court of Appeals issued its opinion in People v. Leverton on Thursday, March 23, 2017.

Theft by Receiving—Possession—Drug Paraphernalia—Mandatory Joinder—Double Jeopardy—Prior Statements—Impeachment—Evidence.

The victim started her car and left it running while she went inside her home to retrieve some belongings. When she returned to where the car had been parked, the car was gone. She immediately reported the theft to the police. A few days later, a police officer pulled over the stolen car. Leverton and two women were passengers. Leverton told the officer that the car belonged to the victim, whom he claimed was his girlfriend. Leverton was arrested and transported to the police station. After removing Leverton from the police vehicle, the officer discovered a pipe typically used to smoke methamphetamine. Leverton was initially charged with possession of drug paraphernalia. Shortly thereafter in a separate case he was charged with theft by receiving. The cases were later joined on the prosecution’s motion, over defendant’s objection. The women passengers testified at Leverton’s trial and were questioned by the prosecutor about oral statements they allegedly had made to police following their arrests. Leverton was convicted as charged.

On appeal, Leverton argued that the trial court erred when it rejected his guilty plea on the paraphernalia charge and then permitted the prosecution to add that charge to the theft complaint because the result was that he was effectively charged with the same offense in two separate cases. He claimed that this violated Colorado’s mandatory joinder statute and the Double Jeopardy Clauses of both the U.S. and Colorado Constitutions. The Court of Appeals noted that Leverton did not allege that he was reprosecuted for either offense after he was convicted or that he was sentenced or otherwise punished multiple times for those offenses. Here, the prosecution moved to join the two offenses prior to Leverton’s attempt to plead guilty to the paraphernalia charge. The court’s procedure met the purpose of the mandatory joinder statute, to prevent successive prosecutions, and Leverton raised no claim of unfair prejudice resulting from the procedure. Further, the court acted within its discretion when it rejected Leverton’s guilty plea to the petty offense. And because the court had not accepted Leverton’s guilty plea on the paraphernalia charge, double jeopardy had not attached and there was no due process violation.

Leverton next argued that the trial court erred in permitting the prosecution to examine the two women witnesses about their prior statements to the police, alleging this evidence was inadmissible and violated his confrontation rights. Both women testified that they did not remember what happened the night the stolen car was pulled over, nor did they remember any statements they made to the police. To impeach the witnesses, the prosecutor was entitled to confront them with the exact language of their prior inconsistent statements. Therefore, the court properly admitted the statements.

Leverton also argued that the prosecution did not present sufficient evidence to prove beyond a reasonable doubt that he committed theft or possessed drug paraphernalia. A few days after the car had been reported stolen, the police found Leverton sitting in the car’s front passenger seat. Though Leverton told the police that the car had been given to him by the victim, his statement was directly refuted by the victim’s testimony that she had never met him. This and other evidence was sufficient to support the theft by receiving conviction. There was also sufficient evidence concerning the pipe found in the police vehicle for the jury to convict Leverton of possession of drug paraphernalia.

Leverton also argued that his convictions were based on his associations with other persons. Having found that the prosecution presented sufficient evidence proving that Leverton and not some other person committed the crimes, the Court rejected this argument.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Double Jeopardy Claims May Be Raised for the First Time on Appeal

The Colorado Supreme Court issued its opinion in Reyna-Abarca v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In these four cases, which raise the ultimate question of whether driving under the influence (DUI) is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI, the Colorado Supreme Court addressed (1) whether a double jeopardy claim can be raised for the first time on direct appeal, and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another.

The court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. In so holding, the court rejected the People’s contention that defendants waive their double jeopardy claims unless they raise them at trial through a Crim. P. 12(b)(2) challenge to defective charging documents.

The court further concluded that the applicable test for determining whether one offense is a lesser included offense of another is the strict elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989). Under this test, an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Applying this test to the cases before it, the court concluded that DUI is a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants’ DUI convictions must merge into the greater offenses. The court further concluded that in not merging such offenses, the trial courts plainly erred and that reversal of the multiplicitous convictions is therefore required.

Accordingly, the court affirmed the divisions’ rulings in People v. Reyna-Abarca, No. 10CA637 (Colo.App. Aug. 1, 2013), and People v. Hill, No. 12CA168 (Colo.App. Aug. 8, 2013), that appellate courts review unpreserved double jeopardy claims for plain error, but reversed the portions of the judgments in those cases concluding that DUI is not a lesser included offense of vehicular assault-DUI, and remanded for further proceedings consistent with the opinion. Similarly, the Court reversed the portion of the judgment in People v. Medrano-Bustamante, 2013 COA 139, ___ P.3d ___, concluding that DUI is not a lesser included offense of vehicular assault-DUI and vehicular homicide-DUI, and remanded for further proceedings. The Court affirmed the judgments in those cases in all other respects, and affirmed in full the judgment in People v. Smoots, 2013 COA 152, ___ P.3d ___.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Courts Should Review Unpreserved Double Jeopardy Claims for Plain Error

The Colorado Supreme Court issued its opinion in Scott v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the supreme court reviewed two issues: (1) whether a double jeopardy claim can be raised for the first time on appeal, and (2) whether defendant William Costello Scott’s convictions for both aggravated robbery-menaced with a deadly weapon (“aggravated robbery-menaced victim”) and menacing amounted to plain error. In light of the Colorado Supreme Court’s opinion in Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___, also decided on February 27, the court concluded here, contrary to the division majority below, People v. Scott, No. 08CA2327 (Colo. App. Nov. 8, 2012), that unpreserved double jeopardy claims can be raised for the first time on appeal and that courts should ordinarily review such claims for plain error. The court further concluded, however, that in the circumstances presented here, any error that might have occurred when the trial court entered judgment on Scott’s convictions for both aggravated robbery-menaced victim and menacing was not obvious, and thus did not amount to plain error.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Court of Appeals Correctly Evaluated Unpreserved Double Jeopardy Claim for Plain Error

The Colorado Supreme Court issued its opinion in Zubiate v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the Colorado Supreme Court addressed (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies, and (2) whether driving under revocation (DUR) is a lesser included offense of aggravated driving after revocation prohibited (aggravated DARP). In Reyna-Abarca v. People, 2017 CO 15, ¶¶ 2–3, ___ P.3d ___, also decided on February 27, the court (1) concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error and (2) clarified the applicable test to be employed in determining whether one offense is a lesser included offense of another.

Applying those rulings here, the court concluded that the division in Zubiate v. People, 2013 COA 69, ___ P.3d ___, correctly (1) conducted plain error review of Zubiate’s unpreserved double jeopardy claim, and (2) determined that DUR is not a lesser included offense of aggravated DARP, although the court’s analysis differs somewhat from that of the division. Accordingly, the court affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Plain Error Review Appropriate for Unpreserved Double Jeopardy Claims

The Colorado Supreme Court issued its opinion in People v. Zadra on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy.

These two cases present the issues of whether double jeopardy claims can be raised for the first time on direct appeal and, if so, what standard of review applies. The Colorado Supreme Court addressed the same issues in four cases also decided on February 27 (consolidated as Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___). There, the court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. Applying that ruling here, the court concluded that the divisions in People v. Zadra, 2013 COA 140, ___ P.3d ___, and People v. Adams, No. 12CA339 (Colo. App. Mar. 12, 2015), correctly conducted plain error review of defendants’ unpreserved double jeopardy claims and merged certain of defendants’ convictions. Accordingly, the court affirmed the judgments in both cases.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Retrial Following Hung Jury Does Not Violate Double Jeopardy Clause

The Colorado Court of Appeals issued its opinion in People v. Beller on Thursday, December 30, 2016.

Peter Wilson Sund Beller arranged to buy two ounces of marijuana from a man named Justin Singleton. Singleton testified that Beller attempted to steal marijuana from him and his dad, and during the ensuing shooting Singleton’s dad was fatally shot and Beller was shot in the chest. Beller was charged with felony murder, two counts of aggravated robbery, and lesser non-included offenses of attempted aggravated robbery, robbery, and attempted robbery. The jury acquitted Beller of aggravated robbery but was hung on the felony murder count. He was retried for felony murder.

Before the second trial, Beller moved for judgment of acquittal, arguing that the Double Jeopardy clause precluded retrial on that count. During the second trial, the court identified robbery and attempted robbery as the predicate offenses for felony murder, but they were not charged separately. Beller was convicted of felony murder.

On appeal, Beller argued his second trial and conviction violated the Double Jeopardy clause, and the court’s admission of certain statements violated hearsay rules and the Confrontation Clause. The court of appeals addressed his Double Jeopardy claims first.

Beller argued that the felony murder charge and all four robbery charges were the same offense for Double Jeopardy purposes. The court agreed. However, the court noted that the Double Jeopardy clause only applies where there has been an event, such as an acquittal, that terminates the original jeopardy, and noted that a hung jury is not such an event. Beller argued that the first jury’s not guilty verdicts on the robbery offenses precluded the second trial on the greater offense of felony murder. He also argued that the acquittals precluded the use of the robbery charges in the second trial as predicate offenses. The court of appeals disagreed with both arguments. The court found that the fact that Beller was charged in the same information in the same case was fatal to his arguments. After a detailed analysis of other Double Jeopardy cases, the court of appeals noted that Double Jeopardy only applied where the offenses were charged separately. The court concluded that jeopardy did not terminate on the felony murder charge after Beller’s first trial.

The court also disagreed with Beller that his acquittals on the aggravated robbery charges precluded the use of robbery as a predicate offense for the felony murder charge. The court noted that there were several possible reasons for the jury’s acquittal, such as finding that Beller did not actually steal anything of value from the Singleton residence, or that he repeatedly asserted he did not remember firing his weapon. The court noted that the acquittal on the aggravated robbery charge did not necessarily decide whether he committed the lesser offense of simple robbery. The court found that Beller’s retrial was not barred by Double Jeopardy or issue preclusion.

Beller also argued that the trial court erred in allowing hearsay statements from the girlfriend of his accomplice, Shaffer, and from his girlfriend. The statements in question were made by Shaffer to the two women regarding the crime and Beller’s admission to the hospital. The court of appeals found no error in their admission. The court found the statements admissible under the statement against interest exception to the hearsay rule, CRE 804(3). The key issue was whether the statements were independently trustworthy. The court concluded that they were, finding that because they were made shortly after the crime and at the home of his girlfriend and Beller’s girlfriend, they were sufficiently trustworthy.

The court of appeals affirmed Beller’s conviction.