People of The State of Colo. v. PRICE

• Decision Date: 24 June 2010
• Docket Number: No. 08CA1240.,08CA1240.
• Citation: 240 P.3d 557
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Allen PRICE, Defendant-Appellant.
• Court: Colorado Court of Appeals

240 P.3d 557

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Richard Allen PRICE, Defendant-Appellant.

No. 08CA1240.

Colorado Court of Appeals,Div. VII.

June 24, 2010.

COPYRIGHT MATERIAL OMITTED.

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Law Offices of Sandomire & Schwartz, Gabriel N. Schwartz, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge LICHTENSTEIN.

Defendant, Richard Allen Price, appeals his conviction following a jury trial. Price contends that the trial court erred by denying his motion for mistrial which was prompted by his mid-trial suicide attempt, that there was a fatal variance between the charging documents, and the verdict forms and that he received ineffective assistance of counsel. We do not address the ineffective assistance of counsel claim and affirm the judgment.

I. Background

In February 2006, the People charged Price with one count of sexual assault on a child, four counts of sexual assault on a child as part of a pattern of sexual abuse, and five counts of aggravated incest, all based on alleged sexual assaults of S.P. At the beginning of the second day of trial, Price failed to appear. During a recess, the parties and the court learned Price had attempted suicide and was in the hospital on a mental health hold. The court denied Price's counsel's mistrial motion prompted by this event, and ordered the trial to proceed. The court read the jury a stipulated instruction stating that Price was voluntarily absent from trial, but that the jury was not to draw any adverse inference against him from his absence.

At the conclusion of trial, the jury found defendant guilty on all ten charges. The court imposed concurrent and consecutive sentences, resulting in a twenty-year sentence in the custody of the Department of Corrections.

This appeal followed.

II. Denial of Mistrial

Price first contends that the trial court erroneously denied his motion for a mistrial. He argues that the trial court erred by (1) determining that he was voluntarily absent under Crim. P. 43, and (2) failing to hold a competency hearing before determining that he had waived his right to be present. We conclude that both arguments fail.

“A mistrial is a drastic remedy and is warranted only if the prejudice to the accused is too great to be remedied by other means.” People v. Rosa, 928 P.2d 1365, 1372 (Colo.App.1996). We will not disturb the decision of the trial court to deny a defendant's motion for a mistrial absent a showing of a gross abuse of discretion and prejudice to the defendant. Id.

A. Waiver of Right to be Present

Whether a defendant waived his right to be present at trial under both the United States and Colorado Constitutions. U.S. Const. amends. VI & XIV; Colo. Const. art. II, § 16; People v. Stephenson, 165 P.3d 860, 868 (Colo.App.2007). As with other constitutional rights, the right to be present during trial is not absolute and may be waived. See Luu v. People, 841 P.2d 271, 273 (Colo.1992).

An effective waiver of the right to be present is a mixed question of fact and law that we review de novo. See Campbell v. Wood, 18 F.3d 662, 672 (9th Cir.1994); see also People v. Bergerud, 223 P.3d 686, 693 (Colo.2010) (stating de novo standard applies to review for waiver of a constitutional right).

The trial court is responsible for ensuring that the defendant's waiver of the right to be present at trial is voluntary, knowing, and intelligent. People v. Campbell, 785 P.2d 153, 155-56 (Colo.App.1989), rev'd on other grounds, 814 P.2d 1 (Colo.1991). Although the preferred method of establishing a waiver is through colloquy with the defendant, see id. at 155, a defendant may waive his or her right to be present by his or her actions, including voluntary absence, after the trial has been commenced in his or her presence. Crim. P. 43(b); Stephenson, 165 P.3d at 868; see Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993). The purpose of this principle is to prevent a defendant from frustrating a trial in progress by his own conduct. See Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); Campbell, 785 P.2d at 155.

Crim. P. 43(b)(1) codifies the general rule applicable where a defendant voluntarily absents himself from trial:

The trial court in its discretion may complete the trial, and the defendant shall be considered to have waived his right to be present, whenever a defendant, initially present:

(1) Voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to remain during the trial....

The division in Stephenson construed this rule to conclude that

absence from trial compelled by medical necessity may generally be deemed voluntary, and ... determining whether a defendant is “voluntarily absent” in such a case requires a fact-specific inquiry into the type of medical condition and circumstances surrounding his or her absence, including an inquiry into the defendant's conduct and statements.

165 P.3d at 870.

Notably, the Stephenson division reached this conclusion by adopting the reasoning of federal cases that held that a defendant may effect a voluntary waiver of the right to be present at trial by attempting suicide once trial has already begun. See United States v. Crites, 176 F.3d 1096, 1098 (8th Cir.1999) (the defendant was voluntarily absent based on his mid-trial suicide attempt accompanied by a suicide note which stated, “This is the only way I can feel like I have won a little bit. I am paying the price, but not the way they wanted me to.”); United States v. Davis, 61 F.3d 291, 300-03 (5th Cir.1995) (a defendant who attempted suicide and was subsequently hospitalized was voluntarily absent under Fed.R.Crim.P. 43 and waived right to be present at trial); cf. United States v. Latham, 874 F.2d 852, 858-59 (1st Cir.1989) (although the defendant voluntarily ingested overdose of cocaine and was hospitalized during trial, he was not voluntarily absent because record showed defendant wanted to attend the trial, ingested drugs only to calm his nerves, and did not intend to commit suicide).

Thus, under Stephenson and the above-cited federal authorities, a defendant's absence may be deemed voluntary where the record establishes that he or she created the medical necessity in order to effect his or her absence from trial.

Here, the record indicates that Price was present on the first day of his jury trial, at which S.P. testified at length about years of alleged sexual abuse by Price. On the second day of trial, Price failed to appear. Defense counsel was able to contact him by phone and Price stated he would be in soon. He told counsel he did not want to pursue the trial any longer, but instead wanted to enter a guilty plea. Rather than appear, Price attempted suicide by cutting his wrists and throat, requiring his hospitalization. He left a note stating, “I cannot live with the crap trial that I am going through in Douglas County. It's all lies and coached by the D.A.'s office....” He was placed on a mental health hold at the hospital.

Based on this information, the trial court determined that Price had voluntarily absented himself from the trial and thus waived his right to be present. The court stated,

Looking at his own words, it's clear that he understood. This was not an accidental event such as taking a drug overdose. This was a purposeful act. He has thought through the fact he did not want to be at trial. He did not want to participate in this trial and he didn't want to go to prison.

The trial court properly conducted a fact-specific inquiry into the circumstances surrounding the absence, including an inquiry into Price's conduct and statements. See Stephenson, 165 P.3d at 870. As evidenced by the record, Price was aware his trial was taking place by attending the first day. His suicide note, discovered after his suicide attempt, reflected both that he understood the proceedings against him and that he purposefully determined to absent himself from the trial. Under these circumstances, we conclude the trial court did not err by finding that Price had voluntarily absented himself from trial by his conduct, thereby waiving his right to be present under Crim. P. 43(b)(1).

B. Competency

Price also contends that once defense counsel informed the court that competency was an issue based on the attempted suicide and resulting mental health hold, the trial court erred by failing to follow the mandate of former section 16-8-110, which directed a court to determine a defendant's competency under the procedures of former section 16-8-111. We disagree.

We review a trial court's competency determination for an abuse of discretion. People v. Palmer, 31 P.3d 863, 865-66 (Colo.2001); Stephenson, 165 P.3d at 866. To show an abuse of discretion, a defendant must establish that under the circumstances the trial court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33, 38 (Colo.1993).

It is well established that subjecting an accused to trial when he or she is incompetent violates the defendant's constitutional right to due process. Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Jones v. Dist. Court, 617 P.2d 803, 806 (Colo.1980). In Colorado, a defendant's due process rights in regard to competency are protected by statute. Former section 16-8-110(2)(a) ¹ required a trial court to suspend criminal proceedings and determine the competency or incompetency of a defendant under former section 16-8-111, whenever the court “has reason to believe that the defendant is incompetent to proceed” (emphasis added).

Former section 16-8-102(3), as applicable here, provided that a defendant is “incompetent to proceed” if he or she suffers from a mental disease or defect that renders him incapable of (1) understanding the nature and...