Colorado Court of Appeals Opinions for Aug. 19

People v. Andrew George Gutierrez

A division of the Court of Appeals held that the joint trial of two defendants charged with first-degree murder resulted in reversible prejudice because their defenses were antagonistic — both accused each other of being the sole killer — and a high volume of evidence was introduced that likely would not have been admissible in a separate trial.

 Andrew Gutierrez and John Sanchez were charged with first-degree murder and conspiracy to commit murder and tried jointly in a two-week jury trial, despite pretrial motions to sever. At trial, the prosecution introduced evidence that the victim was shot four times with bullets from the same gun, which the defendants and the prosecution took as proof there was only one shooter. Gutierrez and Sanchez accused each other of being the lone shooter, but the jury concluded both were guilty.

On appeal, Gutierrez argued the trial court abused its discretion by failing to sever the trials because his and Sanchez’s defenses were mutually exclusive and antagonistic. The Court of Appeals agreed. In its opinion, the division quoted Sanchez’s attorney who, at a pretrial hearing, likened the joint trial to “throwing a gun in the middle of the room and saying: You guys get a trial together, you figure it out and figure out what’s going on.”

“This gladiator-style trial is not one that we can condone,” states the Court of Appeals’ opinion.

The court agreed the joint trial resulted in reversible prejudice. “Because Gutierrez had to defend himself against two accusers, only one of which had the burden of proof beyond a reasonable doubt, we conclude that Gutierrez suffered prejudice from the joint jury trial,” states the division’s opinion.

The division also concluded the joint trial resulted in prejudice because it prevented Gutierrez from fully confronting witnesses against him and because he received fewer peremptory challenges during jury selection than he would have at a separate trial.

The prosecution argued that any prejudice resulting from the joint proceeding was cured by limiting jury instructions. But the Court of Appeals disagreed, noting that the jury heard “differing iterations of five limiting instructions” 21 times during the two-week trial. “We need not decide today just how many limiting instructions are too many,” the division said. “What we can say is that, after instructing the jury to limit its consideration of the evidence twenty-one times, any curative power a limiting instruction may have had was lost.”

The court reversed Gutierrez’s conviction and remanded for a new trial.

People v. Constance Caswell

In a case of first impression, a division of the Court of Appeals considered whether prior convictions constitute a penalty enhancer or a substantive element of the crime of cruelty to animals.

Investigators seized 43 animals, including dogs, cats, birds and horses, from Constance Caswell’s Lincoln County property after observing a lack of food, water and fresh air. She was charged with 43 counts of cruelty to animals and a jury found her guilty of all counts.

During sentencing, Caswell admitted she was previously convicted of cruelty to animals, and the trial court treated the prior convictions as sentence enhancers rather than elements of the crime that must be proved beyond a reasonable doubt. The prior convictions elevated her misdemeanor offenses to felonies.

On appeal, Caswell argued the state legislature intended prior convictions to constitute elements of the offense of felony cruelty to animals that must be proved to a jury beyond a reasonable doubt. Because her prior conviction was not proved beyond a reasonable doubt, she contended her conviction must be reversed.

To support her argument, Caswell pointed to the Colorado Supreme Court’s 2020 decision in Linnebur v. People. In that case, the high court concluded the language and structure of the state’s statutes on felony and misdemeanor DUI show the General Assembly intended to make prior DUI convictions elements of felony DUI.

However, the division noted that the language and structure of the DUI statutes are different from the animal cruelty law, thus “compelling a different result.”

“[B]ecause the statutory language indicates that the legislature clearly intended prior convictions under the animal cruelty statute to constitute a penalty enhancement, the prior convictions need not be found by a jury,” the division concluded, affirming Caswell’s felony conviction.

People v. Amber Leigh Jennings

In a matter of first impression, a division of the Court of Appeals held that a guilty plea doesn’t waive review of a claim that a trial court was disqualified for exhibiting actual bias.

The defendant in the case, Amber Leigh Jennings, was charged with 11 drug and weapons-related counts. Jennings fired her first retained attorney and later filed a motion to dismiss her second retained attorney, at which point the trial court issued an order explaining that she could fire her second attorney, but the court would not appoint counsel or delay the trial.

At a hearing about three weeks later, the court noted it had mistakenly believed her first attorney had been appointed rather than retained, and the court appointed the public defender’s office to represent her. A month later, Jennings asked that alternate defense counsel replace the public defender due to a “conflict.” The court denied the motion in a written order but said it would address the matter at an upcoming hearing, but that hearing was vacated without addressing her motion.

At an ensuing hearing, Jennings pleaded guilty to possession of methamphetamine with intent to manufacture or distribute. Before accepting her plea, the court advised her that by pleading guilty she would lose her right to appeal and other rights, and Jennings confirmed that nobody had forced her to plead guilty and expressed no concerns with her attorney.

Jennings raised three claims for review by the Court of Appeals. First, she claimed the trial court’s refusal to immediately appoint a public defender after she dismissed her second retained attorney constituted a denial of counsel of choice because she was forced to retain that attorney for nearly a month. Second, Jennings contended the court erred by denying her request for alternate defense counsel without holding a hearing per People v. Bergerud. Finally, she claimed the court exhibited actual bias against her.

The division concluded Jennings’ guilty plea precluded review of the first two issues. A guilty plea waives fundamental Sixth Amendment rights, the court said, unless the claim relates directly to the adequacy of the guilty plea. Jennings didn’t challenge the adequacy of her guilty plea — that is, whether it was knowing, voluntary and intelligent — at the trial court or on appeal, stated the Court of Appeals’ opinion, and therefore she waived her claims that the court denied her right to counsel of choice or failed to replace her allegedly conflicted counsel.

On her third claim that the trial court was biased, the Court of Appeals answered a novel question in Colorado, concluding that Jennings’ guilty plea did not waive her claim of actual bias. The division looked to the 10th Circuit Court of Appeals and elsewhere for guidance and “found no authority holding that a guilty plea waives a claim that a judge was disqualified due to actual bias or prejudice concerning a party.”

However, the Court of Appeals ultimately found no actual bias or prejudice on the part of the trial judge in Jennings’ case.

People v. Earl Joseph Ong

In November 2016, Earl Joseph Ong was charged with sexual assault on a child, sexual exploitation of a child and related offenses. The following May, his attorney requested a competency evaluation and the district court found Ong to be incompetent and, because he was out on bond, ordered him to undergo outpatient therapy to restore his competency.

A doctor evaluating Ong submitted three reports to the court between June 2018 and Feb. 2019, with each report stating that Ong’s mental or developmental disability rendered him incompetent to proceed.

In April 2019, Ong’s attorney moved to terminate the proceedings and dismiss the criminal case under section 16-8.5-116 of the criminal code. In June 2019, the doctor submitted a fourth report with the same findings and stated that Ong was permanently incompetent to proceed. Ong’s attorney again asked the court to terminate and dismiss, but this time the district attorney objected, contending that part of the competency statute didn’t apply to Ong because he was not in custody.

On Sept. 21, 2019, the district court granted Ong’s motion to terminate the proceedings and dismissed the criminal charges. The court also stayed the dismissal order for 21 days as permitted under the statute. The stay expired on Oct. 12 and administrative records show the case was marked “closed-dismissed” on Oct. 19.

The prosecution filed a notice of appeal on Dec. 3, 52 days after the stay expired. The prosecution claimed the court’s stay extended the deadline to file an appeal until Oct. 15, when the case was marked closed. Alternatively, the state asked the Court of Appeals to find good cause to dismiss their untimely finding, even if the stay did not extend the appeal deadline.

The division of the Court of Appeals sided with Ong, finding no good cause for the untimely filing. Because the timely filing of a notice of appeal is a prerequisite to jurisdiction, the division dismissed the appeal.

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.


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