People v. Backus

• Decision Date: 08 January 1998
• Docket Number: No. 95CA1174,95CA1174
• Citation: 952 P.2d 846
• Parties: 98 CJ C.A.R. 63 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael O. BACKUS, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 846

952 P.2d 846

98 CJ C.A.R. 63

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael O. BACKUS, Defendant-Appellant.

No. 95CA1174.

Colorado Court of Appeals Div. II.

Jan. 8, 1998.

Rehearing Denied March 5, 1998.

Certiorari Denied Dec. 14 1998. ^*

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Terri L. Brake, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Michael O. Backus, appeals the judgment of conviction entered upon jury verdicts finding him guilty of first degree murder and conspiracy to commit first degree murder. We affirm.

Defendant became involved in a personal relationship with co-defendant, Jill Coit. When they met, Coit was embroiled in a bitter civil suit against her ex-husband, the victim in this case. The lawsuit arose over the victim's claimed interest in a bed and breakfast in Steamboat Springs, Colorado, which Coit owned with a son by a previous marriage. Coit apparently had given the victim a fraudulent deed of trust encumbering the property in order to avoid execution of a judgment obtained in a divorce proceeding by one of her former husbands.

After Coit filed the civil action against the victim seeking release of the deed of trust, the victim counterclaimed for intentional infliction of emotional distress and outrageous conduct. The counterclaims alleged, among other things, that Coit had falsely asserted she had given birth to a child fathered by the victim.

The murder occurred in Steamboat Springs one week before the civil trial was to begin. Approximately one month later, defendant and Coit were arrested and charged with first degree murder and conspiracy to commit murder. Their cases were joined and venue of the trial was changed from Routt County to Grand County. A six-week trial resulted in the convictions here at issue.

I.

Defendant first contends his speedy trial rights were violated because the trial court failed to find good cause for not granting a severance as required by § 18-1-405(6)(c), C.R.S.1997. Accordingly, defendant asserts that he is entitled to dismissal of the charges on that basis. We disagree.

Section 18-1-405(6)(c) and Crim. P. 48(b)(6)(III) exclude from the computation of the six-month speedy trial period:

[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. (emphasis added)

The joint trial was to begin August 29, 1994, about one month before the expiration of defendant's original speedy trial period. Both defendant and Coit previously had moved for separate trials, see § 16-7-101, C.R.S.1997, and Crim. P. 14, but only Coit moved for a continuance. The prosecution objected to severance and a continuance.

In a written order dated June 14, 1994, the trial court denied the motions for severance, finding it unwarranted, but it granted Coit's motion for a continuance and scheduled a telephone conference call for June 27th to reset the trial.

At the telephone conference, the trial court reset the trial as Coit requested. In response to defendant's objection that his speedy trial rights were being violated, the prosecutor requested the court to "make a specific finding that [there] is a reasonable period of delay under the circumstances." The trial court explained its decision in part as follows:

The court would note that this case is very complex in the sense of at least the number of potential witnesses, the nature of the evidence that is going to be presented, and the various relationships that are involved. It is going to be a lengthy trial ... there is something over 180 witnesses that have been identified, a good deal of physical evidence has been proposed to be offered, and there are significant legal issues to be resolved.

Defense counsel also asked for clarification of the court's ruling stating, "[T]he Court is as I understand it, finding that there is good cause for not granting severance." The trial court responded: "Right." (emphasis added)

In support of his assertion that his right to a speedy trial has been violated, defendant relies on People v. Hernandez, 829 P.2d 392 (Colo.App.1991). There, a division of this court held that defendant's speedy trial rights were violated because the trial court did not make the findings required by § 18-1-405(6)(c). In contrast, here, the trial court did find there was good cause not to sever the trial at the telephone conference conducted on June 27th.

Contrary to defendant's contention, we are not required to reach another result and dismiss this murder conviction because the People have changed their legal position on appeal regarding this issue.

In their answer brief filed in this court, the People initially conceded that the trial court had failed to make findings of good cause during the June 27th telephone hearing, as required by the speedy trial statute. Then, in a supplemental brief filed at the request of the court following oral argument, the People abandoned their earlier position and now contend that sufficient findings were made based on specific portions of the record which we have quoted above.

Defendant maintains that the People's original position constituted a judicial admission which is conclusive on the speedy trial issue and that they are now precluded from asserting a contrary legal argument. We are not persuaded.

A judicial admission is a formal, deliberate declaration which a party or his or her attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute. People v. Bertagnolli, 861 P.2d 717 (Colo.1993).

Defendant relies primarily on civil actions which apply the general principle that litigants should not be allowed to take one factual position or posit one theory of recovery in their pleadings or at trial and later change that position after the civil litigation has begun, to the detriment of the other party. An example of such a case is Ohio & Mississippi Ry. Co. v. McCarthy, 96 U.S. 258, 6 Otto 258, 24 L.Ed. 693 (l877).

But in the criminal context, defendant has directed us only to appellate decisions applying the doctrine in a very limited manner, such as to preclude an accused who has testified to certain facts at trial from contradicting that testimony with irreconcilable defense instructions. See People v. Garcia, 826 P.2d 1259 (Colo.1992) (defendant's testimony that his own videotaped interview was a lie held to be a binding judicial admission and, because it was inconsistent with his tendered heat of passion manslaughter, trial court did not err in refusing instruction); People v. York, 897 P.2d 848 (Colo.App.1994) (because defendant testified at trial and denied being present at time of altercation, trial court did not err in refusing defense instructions regarding heat of passion defense, self defense, and defense of others).

Defendant has not cited any authority for the proposition that an appellate court in a criminal proceeding is bound by either the prosecutor's or defense counsel's statement about what is contained in, or the inferences that may be drawn from, the trial court record.

As to the law that should be applied, numerous decisions have held that an appellate court is not bound by the concessions of the parties regarding the applicable law. Rather, it can rely on its own interpretation of the law, even if it is clearly inconsistent with the representations or arguments of counsel in briefs or in oral argument, and even if counsel has taken an internally inconsistent position. See People in Interest of P.J.N., 664 P.2d 245 (Colo.1983) (supreme court concluded that particular precedent relied upon by trial court did not control the result, contrary to the concessions of the parties); Denver & R.G.R. Co. v. Johnson, 50 Colo. 187, 190, 114 P. 650, 651 (1911) ("The fact that opposing counsel may agree upon a proposition of law, does not commit the court to its approval"); People v. Harris, 797 P.2d 816, 818 (Colo.App.1990) ("Although we are not bound by the People's concession that the jury's failure to complete its verdict forms requires a remand for resentencing ... we conclude that such a remand is the appropriate remedy here"); People v. Nave, 689 P.2d 645 (Colo.App.1984) (panel refused to accept attorney general's concession at oral argument that a due process violation had occurred, concluding that the attorney general's brief taking the opposite position was more accurate statement of applicable law); C.R.A.H. by Pueblo County concerning P.M.M., 647 P.2d 239 (Colo.App.1981) (panel refused to accept counsel's concession that award to guardian ad litem had to be reversed, concluding that statute specifically allowed such an award).

Similarly, the record on appeal speaks for itself. We therefore hold that we may choose to accept, but we are not bound by, the concessions of counsel regarding its contents or the inferences that properly may be drawn from it.

Hence, we reject defendant's contention that the trial court erred in denying his motion to dismiss based on speedy trial.

II.

Defendant also contends the trial court erred in denying his motion for a separate trial and that a new trial is required. We do not agree.

A defendant is entitled to a severance as a matter of right if there is material evidence admissible against one but not all of the parties, and admission of that evidence is prejudicial to the party against whom the evidence is not admissible. Section 16-7-101, C.R.S.1997; Crim. P. 14; Peltz v. People, 728 P.2d 1271 (Colo.1986).

If severance is not mandatory, the motion is addressed to the sound discretion of the trial court...