March 20, 2019

Colorado Supreme Court: In Double Jeopardy Realm, Merge of Multiplicitous Convictions Has Same Effect as Vacating All but One

The Colorado Supreme Court issued its opinion in People v. Wood on Tuesday, January 22, 2019.

Double Jeopardy—Multiplicitous Convictions—Sentencing and Punishment—Amendment and Correction.

The supreme court clarified that when a mittimus provides that multiplicitous convictions merge, a defendant is afforded the protection to which he or she is entitled under the double jeopardy clause just the same as when a mittimus indicates that all but one of the multiplicitous convictions are vacated. In the double jeopardy realm, the merger of multiplicitous convictions has the same effect as vacating all but one of them.

Here, defendant’s mittimus accurately documented the state district court’s decision to merge his two murder convictions and impose a single life sentence on the resulting merged conviction. But, in resolving defendant’s habeas corpus petition, the U.S. Court of Appeals for the Tenth Circuit misread the mittimus as containing two murder convictions for the same killing and found a double jeopardy defect. Merely because defendant’s mittimus merged the multiplicitous murder convictions, rather than expressly stating that one of them was vacated, does not mean that his double jeopardy rights were violated.

Even if the Tenth Circuit correctly understood the mittimus, any error was clerical in nature. Therefore, the proper remedy was to simply correct the mittimus pursuant to Rule 36 of the Colorado Rules of Criminal Procedure.

Because a division of the court of appeals assumed that the Tenth Circuit’s reading of the mittimus was accurate and then failed to recognize that any error in the mittimus was subject to correction under Rule 36, the court reversed the division’s judgment and vacated its opinion. However, given that the district court recently amended the mittimus to expressly state that one of the multiplicitous murder convictions was vacated, the court did not remand this matter.

Summary provided courtesy ofColorado 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.