Oram v. People of State

Decision Date01 August 2011
Docket NumberNo. 09SC224.,09SC224.
Citation255 P.3d 1032
PartiesJason Richard ORAM, Petitionerv.The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

OPINION TEXT STARTS HERE

Douglas K. Wilson, Public Defender, Michael C. Mattis, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Criminal Justice Section, Appellate Division, Denver, Colorado, Attorneys for Respondent.Justice RICE delivered the Opinion of the Court.

In this case, we examine whether the common law bonding agent's privilege exists in Colorado and, if so, whether it justified petitioner, bonding agent Jason Richard Oram, and his partner and codefendant, bonding agent Devon Scott Weinstein, in entering a home where they believed a bonded individual to be domiciled. We also examine whether there was sufficient evidence to sustain charges of second degree burglary.1 We hold that the common law bonding agent's privilege does not exist in Colorado and that there is sufficient evidence that Oram and Weinstein knew that their entry into the home was unlawful to sustain charges of second degree burglary. Therefore, we affirm the decision of the court of appeals.

I. Facts and Proceedings Below

This case arises out of Oram and Weinstein's entry into a residence in pursuit of a bonded individual. Oram now challenges his convictions of second degree burglary and felony menacing arising from this incident.

John Vigil completed a bond application and agreement for a surety bail bond with LaDonna's Bail Bonds (“LaDonna's”). LaDonna's subsequently posted bond for Vigil on a drug charge. After Vigil failed to appear for a scheduled court appearance, Jefferson County issued an arrest warrant and notified LaDonna's of Vigil's failure to appear. Because LaDonna's considered this a violation of Vigil's bond agreement, on August 2, 2004, it sent Oram and Weinstein to locate and apprehend Vigil.

LaDonna's gave Oram and Weinstein a copy of its internal file on Vigil on the morning of August 2, 2004. Additionally, Oram and Weinstein obtained a copy of Vigil's file and arrest warrant from the Jefferson County Courthouse. Because of an issue at the courthouse, Oram and Weinstein were unable to obtain a photo of Vigil. Therefore, the only information that Oram and Weinstein had pertaining to Vigil's appearance was a written description stating that he was a five-foot, two-inch Hispanic male weighing 128 pounds with brown hair and brown eyes and that his birthday was February 2, 1948.

Oram and Weinstein first attempted to contact Vigil by phone, using the two numbers that he had provided in his bond application. Both of these numbers, however, were disconnected. Next, at approximately 9 p.m. on August 2, 2004, the same day that they were put on the case, Oram and Weinstein staked out the address listed in Vigil's bond application and in his file from Jefferson County, 1446 King Street in Denver (“King Street Residence”).

Although Vigil listed the King Street Residence as his address, Vigil did not actually reside there and had not done so since the early 1980's. The residents of the King Street Residence at that time were: Vigil's brother, Eugene Vigil, who cosigned the bond application; Eugene's daughter, Gina Vigil; Gina's daughter, Zondra Vigil; Zondra's boyfriend, Joe Martinez; and Gina's young niece and nephew. At the time of the alleged burglary, Gina, Zondra, and Martinez (“Inhabitants”) were present at the King Street Residence.

Oram and Weinstein spent approximately one hour staking out the King Street Residence. During their surveillance, Zondra noticed Oram shining a light in the window. At that point, Gina, with Martinez closely behind, approached the screen door and saw Weinstein. According to the Inhabitants, Weinstein stated that he was a Denver Police Officer there to investigate a report of a disturbance at that location. After asking Gina's name, Weinstein asked Martinez's name and Martinez responded “Joe.” Then, while Gina had her hand on the latch, Weinstein pulled open the door, causing Gina to fall outside. Oram then entered the home, ordered Martinez to the ground, and handcuffed him.

The Inhabitants provided various descriptions of the incident, stating that at numerous times Oram and Weinstein referred to themselves as police officers and federal agents. Oram and Weinstein also wore necklace badges which the Inhabitants believed were police badges but, in reality, were bounty hunter badges. Additionally, the Inhabitants stated that Oram and Weinstein pointed guns at Gina and Martinez. Oram, on the other hand, testified that he never referred to himself as a law enforcement agent, did not have a gun, and, although he and Weinstein each had tasers, the only time that he was aware that one was pointed at one of the Inhabitants was when Weinstein pointed his taser at Martinez and ordered him to the ground.

Soon after Oram and Weinstein entered the King Street Residence and apprehended Martinez, they realized that Martinez was not John Vigil, removed the handcuffs and asked the Inhabitants where John Vigil could be located. According to Gina, Weinstein gave her a piece of paper with a phone number and the name “Detective Scott.” During this exchange, John Vigil's brother, Eugene Vigil, returned to the King Street Residence and, after further conversation, Oram and Weinstein departed. Approximately one hour later, Eugene Vigil called to notify Oram and Weinstein that his brother, John Vigil, was in police custody.

After a jury trial, Oram and Weinstein were convicted of second degree burglary and felony menacing.

II. Analysis

On appeal to this Court, Oram makes three main arguments: (1) that affirmative defense instruction 16 tendered by the trial court and given to the jury was improper because it did not adequately reflect the common law bonding agent's privilege; 2 (2) that the trial court improperly rejected his and Weinstein's tendered jury instructions regarding consent, 3 immunity,4 and the bondsman's privilege; 5 and (3) that there was insufficient evidence that Oram and Weinstein knew that entering the King Street Residence was illegal to reach the jury on the charge of burglary.

Because we hold that the common law bonding agent's privilege does not survive in Colorado, affirmative defense instruction 16, as well as the trial court's denial of Oram and Weinstein's tendered instructions regarding the bondsman's privilege and immunity, was proper. Next, because none of the residents living in the King Street Residence consented to Oram and Weinstein's entry, the trial court properly rejected Oram's tendered instruction regarding consent. Lastly, even though Oram and Weinstein contend that they entered the King Street Residence believing that they had authority to do so under the common law bonding agent's privilege, there is sufficient evidence on the issue of whether Oram and Weinstein knew their entry into the King Street Residence was unlawful for the issue to reach the jury.

A. Bonding Agent's Privilege

The court of appeals held that the common law bonding agent's privilege survives in Colorado and that affirmative defense instruction 16 adequately articulated the privilege, rendering Oram and Weinstein's tendered jury instruction explaining the privilege and claiming immunity unnecessary. We hold that the common law bonding agent's privilege does not exist in Colorado. Therefore, the trial court properly dismissed Oram and Weinstein's tendered instructions and, although instruction 16 was unnecessary, any error in its presence inured to the benefit of Oram and Weinstein and was thus harmless.

In Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 21 L.Ed. 287 (1872), the U.S. Supreme Court articulated as dicta what has come to be known as the common law bonding agent's privilege. See, e.g., State v. Nugent, 199 Conn. 537, 508 A.2d 728, 731–32 (1986); State v. Burhans, 277 Kan. 858, 89 P.3d 629, 633 (2004); State v. Tapia, 468 N.W.2d 342, 343–44 (Minn.Ct.App.1991). The Court stated:

When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if it cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner.

Taylor, 83 U.S. at 371 (emphasis added). Although many other states have recognized and adopted the common law bonding agent's privilege, Colorado has never explicitly recognized its existence outside of its general adoption of the common law.

In Colorado, the common law remains valid and in effect unless it is repealed by the General Assembly. § 2–4–211, C.R.S. (2010). We construe such alterations made to the common law by the General Assembly strictly, Vigil v. Franklin, 103 P.3d 322, 327 (Colo.2004), and will only recognize changes that the General Assembly has expressly mandated or necessarily implied by subsequent legislation, Clancy Sys. Int'l, Inc. v. Salazar, 177 P.3d 1235, 1237 (Colo.2008). Accordingly, we must look to the Colorado Revised Statutes to determine if the common law bonding agent's privilege survives in Colorado.

The general provisions of the criminal code, read together with the burglary statutes, necessarily imply that the General Assembly intended to abolish the common law bonding agent's privilege. Section 18–1–104(3), C.R.S. (2010), states that common law crimes are abolished in Colorado and that conduct constitutes an offense only if it is defined by...

To continue reading

Request your trial
31 cases
  • United States v. Bernel-Aveja
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 13 d2 Dezembro d2 2016
    ...another person or property while in the dwelling can be formed either before or after the unlawful entry"), aff'd on other grounds, 255 P.3d 1032 (Colo. 2011) ; People v. Larkins, 109 P.3d 1003, 1004 (Colo. App. 2004) ; People v. Wartena, 296 P.3d 136, 140 (Colo. App. 2012) ).123 State v. H......
  • People v. LaRosa
    • United States
    • Colorado Supreme Court
    • 11 d1 Fevereiro d1 2013
    ...the enactment of our Criminal and Criminal Procedure Codes, which expressly abolish common-law crimes and defenses, see Oram v. People, 255 P.3d 1032, 1036 (Colo.2011); the Colorado Rules of Evidence (effective Jan. 1, 1980), which expressly define hearsay to exclude the out-of-court statem......
  • People v. Carter
    • United States
    • Colorado Court of Appeals
    • 12 d4 Março d4 2015
    ...to give a particular jury instruction for abuse of discretion." People v. Oram, 217 P.3d 883, 893 (Colo. App. 2009), aff'd, 255 P.3d 1032 (Colo. 2011). "The trial court has broad discretion to formulate jury instructions as long as they are correct statements of the law." Id.B. Applicable F......
  • Boles v. Long
    • United States
    • U.S. District Court — District of Colorado
    • 4 d5 Junho d5 2021
    ...jury instructions as long as they are correct statements of the law." People v. Oram, 217 P.3d 883, 893 (Colo. App. 2009), aff'd, 255 P.3d 1032 (Colo. 2011).Where a defendant's instructional argument is unpreserved, we review for plain error. People v. Miller, 113 P.3d 743, 750-51 (Colo. 20......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT