People v. Close

• Decision Date: 11 May 2000
• Docket Number: No. 97CA1863.,97CA1863.
• Citation: 22 P.3d 933
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James C. CLOSE, Defendant-Appellant.
• Court: Colorado Court of Appeals

22 P.3d 933

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James C. CLOSE, Defendant-Appellant.

No. 97CA1863.

Colorado Court of Appeals, Div. III.

May 11, 2000.

Rehearing Denied July 27, 2000.

Certiorari Granted April 9, 2001.¹

Ken Salazar, Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge NEY.

Defendant, James C. Close, appeals the denial of his motion for post-conviction relief pursuant to Crim. P. 35(c). We affirm.

On October 6, 1990, defendant and three companions vandalized and stole speakers from a car. They then confronted a group of six Japanese students, ordered them to lie down, demanded and took identification and personal items, and beat them with baseball bats and sticks.

Defendant was convicted by a jury of one count each of criminal mischief, first degree criminal trespass, theft, and conspiracy to commit criminal mischief and theft; three counts each of aggravated robbery and attempted aggravated robbery; six counts each of second degree assault and ethnic intimidation; and one count of conspiracy to commit ethnic intimidation. Defendant was sentenced to a total of 75 years of imprisonment.

On direct appeal, a division of this court affirmed the judgment of conviction, but remanded the case for re-sentencing. See People v. Close, 867 P.2d 82 (Colo.App.1993). Defendant's petition for certiorari was denied. Based on this court's opinion in People v. Close, supra, the trial court re-sentenced defendant to cumulative minimum sentences which totaled 60 years of imprisonment.

On July 1, 1996, defendant filed a timely motion for post-conviction relief. On June 2, 1997, after a hearing, the Crim. P. 35(c) court denied the motion. On June 20, 1997, defendant requested that the court reconsider in light of Bogdanov v. People, 941 P.2d 247, amended, 955 P.2d 997 (Colo.1997), which was decided after the decision in defendant's direct appeal became final. The Crim. P. 35(c) court vacated its previous order of denial, and heard arguments on the applicability of Bogdanov v. People, supra. The court again denied defendant's Crim. P. 35(c) motion on September 8, 1997. This appeal followed.

I.

Defendant contends that the court erred in denying his Crim. P. 35(c) motion because the pattern complicity instruction given in his trial was deficient. Defendant argues that the instruction unconstitutionally lessened the prosecution's burden of proof because the instruction did not require that the prosecution prove he knew that the principals intended to commit the underlying crimes. We disagree.

A.

As a threshold issue, we must determine whether defendant may raise this issue, in a Crim P. 35(c) context, after the propriety of the instruction at issue had been previously decided on direct appeal. Under the exceptionally limited circumstances of this case, we exercise our discretion and review the issue.

A defendant is entitled to judicial review of a Crim. P. 35(c) motion if the motion states a claim cognizable under that rule, and the claim has not been fully and finally resolved in a prior judicial proceeding. People v. Diaz, 985 P.2d 83 (Colo.App.1999).

Defendant seeks relief under Crim. P. 35(c)(2)(I), which provides that a defendant is entitled to make application for post-conviction review if:

[T]he conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state.

Defendant claims a violation of his right to substantive due process, in that the complicity jury instruction did not require that the prosecution prove the intent necessary to establish his liability as a complicitor. Because due process requires that the prosecution prove, beyond a reasonable doubt, every element necessary to constitute the charged offense, see U.S. Const. amend. XIV; Colo. Const. art. II, § 25; Cooper v. People, 973 P.2d 1234 (Colo.1999), we conclude that defendant asserts a cognizable constitutional claim under Crim. P. 35(c)(2)(I).

Thus, the issue is whether defendant's Crim. P. 35(c) claim was fully and finally resolved in a prior judicial proceeding. See DePineda v. Price, 915 P.2d 1278, 1281 (Colo. 1996) (a defendant is prohibited from using a Crim. P. 35(c) proceeding "to relitigate issues fully and finally resolved in an earlier appeal"); People v. Billips, 652 P.2d 1060 (Colo. 1982).

On direct appeal, a division of this court rejected defendant's claim that the complicity instruction used at his trial was improper, People v. Close, supra, and the supreme court denied certiorari review. However, the supreme court subsequently reviewed the pattern complicity instruction given in this case, and specifically disapproved a portion of this court's reasoning in People v. Close, supra. See Bogdanov v. People, supra, 941 P.2d at 251 n. 9. Generally, a determination of an issue on direct appeal precludes review of that same issue under Crim. P. 35(c). See DePineda v. Price, supra; People v. Johnson, 638 P.2d 61 (Colo.1981). Although the complicity instruction in defendant's case was found proper on direct appeal by this court, we conclude that we have the discretion to review the case under the narrow circumstances presented here.

Here, it is undisputed that defendant's Crim. P. 35(c) motion was timely. At issue in his motion is an allegedly significant change in the interpretation of the law, of constitutional magnitude, determined since the defendant's direct appeal was affirmed. Furthermore, this change was made by a court whose decisions are binding on this court. Significantly, the supreme court's subsequent opinion disapproved this court's reasoning expanding the holding of People v. Wheeler, 772 P.2d 101 (Colo.1989), to cases involving negligent and reckless crimes.

Thus, under the limited and unusual conditions presented in this case, we conclude that this is a proper circumstance for the exercise of our discretion to review defendant's claims raised under Crim. P. 35(c). Cf. People v. Allen, 843 P.2d 97 (Colo.App.1992), rev'd on other grounds, 868 P.2d 379 (Colo.1994) (reviewing a timely second post-conviction motion, under Crim. P. 35(c)(1), because there had been a significant change in the law after the first post-conviction motion was filed); People v. Diaz, supra (reviewing, in a Crim. P. 35(c) motion, defendant's constitutional challenges that were raised but not decided on direct appeal).

B.

Defendant contends that the complicity instruction given to the jury unconstitutionally lessened the prosecution's burden of proof, because it did not require proof beyond a reasonable doubt of a mental state necessary to establish liability as a complicitor on the aggravated robbery and attempted aggravated robbery crimes. We disagree.

Complicity is a legal theory, defined by the General Assembly, "by which an accomplice may be held criminally liable for a crime committed by another person if the accomplice aids, abets, or advises the principal, intending thereby to facilitate the commission of the crime." Bogdanov v. People, supra, 941 P.2d at 250; § 18-1-603, C.R.S. 1999. If the evidence presented establishes that two or more persons were jointly engaged in the commission of a crime, then it is appropriate for the trial court to instruct the jury on complicity. People v. Osborne, 973 P.2d 666 (Colo.App.1998).

In Bogdanov v. People, the supreme court reviewed the same pattern criminal jury instruction on complicity that was given in this case. The jury instruction at issue was COLJI-Crim. No. 6:04 (1983), which provides that:

A person is guilty of an offense committed by another person if he is a complicitor.

To be guilty as a complicitor, the following must be established beyond a reasonable doubt:

1. A crime must have been committed.

2. Another person must have committed all or part of the crime.

3. The defendant must have had knowledge that the other person intended to commit all or part of the crime.

4. The defendant did intentionally aid, abet, advise, or encourage the other person in the commission or planning of the crime.

Bogdanov v. People, supra, 941 P.2d at 252.

The Bogdanov court analyzed the assertion that the instruction failed to instruct the jury properly of the statutory requirement, set forth in § 18-1-603, that the defendant intended "to promote or facilitate the commission of the offense."

In doing so, the supreme court first looked at People v. Wheeler, supra, in which it held that the prosecution needs only to prove that the complicitor had knowledge that the principal was engaged in, or about to engage in, a crime where the mens rea is recklessness or negligence. The court then reviewed People v. Close, supra, in which a division of this court extended the holding in People v. Wheeler to apply to an underlying crime in which the mens rea was knowingly. The Bogdanov court disapproved of the reasoning in People v. Close, to the extent that it ruled that the required intent element was only that the complicitor had knowledge that the principal was engaged in, or about to engage in, the underlying crime. Bogdanov v. People, supra, 941 P.2d at 251 n. 9. The court concluded that two mental states must be proven for complicity liability to exist with regard to knowing or intentional crimes. First, the complicitor must have the culpable mental state required for the underlying crime committed by the principal. Additionally, the complicitor must assist or encourage the commission of the crime committed by the principal "with the intent to promote or facilitate" such commission. Bogdanov v. People, supra (citing § 18-1-603). See also People v. Fisher, 9 P.3d 1189 (Colo.App. 2000).

Accordingly, the Bogdanov court reviewed the pattern jury instruction, finding that it omitted the...