People v. Butler

• Decision Date: 09 July 2009
• Docket Number: No. 07CA0537.,07CA0537.
• Citation: 224 P.3d 380
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eddie BUTLER, Defendant-Appellant.
• Court: Colorado Court of Appeals

224 P.3d 380

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eddie BUTLER, Defendant-Appellant.

No. 07CA0537.

Colorado Court of Appeals, Div. I.

July 9, 2009.

John W. Suthers, Attorney General, Jennifer L. Ward, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Nathaniel E. Deakins, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Eddie Butler, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of one gram or less of a schedule one controlled substance (ecstasy) and finding that he was a special offender because he possessed a firearm during the commission of the offense. He also challenges the mandatory parole period of his sentence. We affirm his conviction, vacate the sentence in part, and remand to the trial court to correct his mandatory parole period.

He argues (a) that the conviction on the special offender count should be vacated because the trial court abused its discretion in allowing the prosecution to add the charge over his allegations of vindictive prosecution, for which the trial court denied his motion for discovery, (b) that his conviction should be reversed because he was deprived of a fair trial, and (c) that even if we affirm his conviction and sentence, the trial court erred in imposing a five-year mandatory parole period.

I. Background

On November 22, 2004, Butler's vehicle was stopped by Denver police officers and he was arrested on an outstanding warrant for the murder of a police officer's son. Butler disclosed to the police officers that he had a gun, which the officers retrieved after he was handcuffed. He was then patted down and no other weapons or contraband was discovered.

At the police station, four ecstasy pills were found inside the jacket Butler was wearing. Two days later, Butler was charged with possession of a controlled substance. At trial, Butler's roommate testified that he owned the jacket that Butler wore when he was arrested, and that the ecstasy pills belonged to him.

At Butler's request, this case trailed the trial in the murder case. After he was acquitted in the murder case, the trial court allowed the prosecution to amend the information in this case to add the special offender charge, over Butler's objection. At the same time, Butler moved for discovery, alleging that the special offender charge was added in retaliation for his acquittal in the murder case and thus was vindictive prosecution. The trial court denied Butler's discovery motion, concluding that Butler had not sufficiently alleged vindictive prosecution.

In another pretrial ruling, the trial court determined that it would exclude evidence that the arrest warrant for Butler was issued on charges of murder.

In December 2006, a jury convicted Butler of possession of less than one gram of ecstasy and found that he had violated the special offender statute because he was carrying a handgun while he possessed the ecstasy. He was sentenced to eight years in the Department of Corrections (DOC) and five years of mandatory parole.

Butler appeals his conviction and sentence.

II. Vindictive Prosecution

Butler contends that the trial court (a) abused its discretion in allowing the prosecution to add the special offender count after the acquittal in his murder trial because he made a sufficient showing of vindictive prosecution, and (b) abused its discretion in denying his motion for discovery on this claim. We disagree.

A prosecutor has "wide discretion in determining who to prosecute for criminal activity and on what charge." People v. Kurz, 847 P.2d 194, 196 (Colo.App.1992). However, that discretion is not unlimited. Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978). Vindictive prosecution that penalizes a defendant for exercising his or her constitutional rights is a denial of due process. People v. Ivery, 44 Colo.App. 511, 513, 615 P.2d 80, 82 (1980). "`Prosecutorial vindictiveness' is the impermissible selection of which charge to prosecute based on malicious motive or bad faith of prosecution." 14 Robert J. Dieter, Colo. Prac., Criminal Practice & Procedure § 2.141 (2d ed.2004).

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court held that the prosecution's retaliation against a defendant who exercised his statutory right to a trial de novo "by substituting a more serious charge for the original one" at the second trial was presumptively vindictive. 417 U.S. at 28, 94 S.Ct. at 2102. In United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), however, the Court refused to extend the presumption of vindictiveness to a pretrial setting, and instead required a defendant to show the prosecution had a vindictive motive.

A. Motion for Discovery

Whether a defendant is entitled to discovery to support a defense of vindictive prosecution is an issue of first impression in Colorado. Colorado courts have addressed vindictive prosecution, or prosecutorial bad faith, but not in the context of a defendant's request for discovery based on allegations of vindictive prosecution. See Hampton v. Dist. Court, 199 Colo. 104, 605 P.2d 54 (1980) (defendant made prima facie claim of prosecutorial bad faith); People v. Williams, 916 P.2d 624 (Colo.App.1996) (prosecutor's decision to file habitual criminal counts at second trial was not prosecutorial vindictiveness); People v. Talley, 677 P.2d 394 (Colo.App. 1983) (defendant did not allege prima facie claim of prosecutorial bad faith); Clary v. County Court, 651 P.2d 908, 909-10 (Colo. App.1982) (based on defendant's allegations of prosecutorial vindictiveness, he was allowed to call the prosecuting attorney as a witness to prove such allegations).

Based on federal cases, we conclude that a trial court's denial of discovery on a claim of vindictive prosecution should be reviewed for abuse of discretion. See, e.g., United States v. Sanders, 211 F.3d 711, 717 (2d Cir.2000).

To assist them in proving vindictive prosecution, defendants in some cases have sought to obtain relevant discovery from the prosecution. At issue here is what threshold showing of vindictive prosecution is necessary to enable a defendant to obtain such discovery. We conclude that this threshold is necessarily lower than the quantum of evidence needed to establish a claim of vindictive prosecution, but that a defendant must present more than conclusory allegations to meet this threshold.

The division in People v. Valencia-Alvarez, 101 P.3d 1112, 1116 (Colo.App.2004), held that a defendant must provide some credible evidence tending to show the existence of both discriminatory effect and discriminatory intent in order to obtain discovery on a selective prosecution claim.¹ That division relied upon federal case law, including United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996).

We find the analysis in Valencia-Alvarez instructive for the issue before us.

Accordingly, we conclude that a defendant must provide some credible evidence tending to show the existence of the essential elements of a vindictive prosecution defense in order to obtain discovery from the prosecution on this issue. Accord Sanders, 211 F.3d at 717 (adopting vindictive prosecution discovery standard from selective prosecution discovery standard and concluding that a defendant must provide some evidence of essential elements of vindictive prosecution to obtain discovery); United States v. Heidecke, 900 F.2d 1155, 1159 (7th Cir.1990) (same); United States v. Adams, 870 F.2d 1140, 1146 (6th Cir.1989) (same); cf. Armstrong, 517 U.S. at 468, 116 S.Ct. at 1488 (providing discovery standard on selective prosecution claim).

The some credible evidence standard for obtaining discovery on a claim of selective or vindictive prosecution is "rigorous." Armstrong, 517 U.S. at 465, 116 S.Ct. at 1486. This is so because courts should be hesitant to second guess a prosecutor's charging decisions, the basis for prosecutions, or the prosecutor's motives because such inquiry may delay criminal proceedings and threaten to chill law enforcement. Id. Requiring a rigorous showing of some credible evidence "balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution." Id. at 470, 116 S.Ct. at 1489.

Although the standard is rigorous, as is the case with claims of selective prosecution, this threshold showing to obtain a discovery order is less than that required to establish a prima facie claim of vindictive prosecution. See Valencia-Alvarez, 101 P.3d at 1116 (discovery standard for selective prosecution claim is less than prima facie case of selective enforcement); cf. United States v. Alameh, 341 F.3d 167, 174 (2d Cir.2003) (discovery for selective prosecution is lesser standard than that for the merits).

Accordingly, we must determine whether Butler produced some credible evidence of vindictive prosecution — that is, evidence of a genuine animus motivating the prosecution to retaliate against him — to justify additional discovery. See Sanders, 211 F.3d at 717-18. The mere possibility that an animus might exist is not enough. Id. In addition, a "defendant's claim of vindictive prosecution must rise beyond the level of unsupported allegations." Heidecke, 900 F.2d at 1159.

Butler's discovery motion sought to obtain:

all referrals [to the] Denver District Attorney's Office by the Denver Police Department where the allegation was that an individual possessed a controlled substance and a deadly weapon. Included in this request is all the information concerning the charging decisions, any plea bargain offers and any resolution of the case. Also included in this request is information concerning the race of the defendant.

Butler alleged selective and vindictive prosecution in his...