People v. Collie

• Decision Date: 15 April 1999
• Docket Number: No. 97CA1113.,97CA1113.
• Citation: 995 P.2d 765
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward COLLIE, Defendant-Appellant.
• Court: Colorado Court of Appeals

995 P.2d 765

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward COLLIE, Defendant-Appellant.

No. 97CA1113.

Colorado Court of Appeals, Div. II.

April 15, 1999.

As Modified on Denial of Rehearing June 10, 1999.

Certiorari Denied February 22, 2000.

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

Nancy J. Lichtenstein, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge PLANK.

Defendant, Edward Collie, appeals the judgment of conviction entered upon jury verdicts finding him guilty of theft and conspiracy to commit theft. We affirm.

In 1994 and 1995, defendant induced homeowners to enter into contracts with his son's landscaping business, a corporation. After collecting an initial deposit and, in most instances, a progress payment upon completion of soil preparation work, the remainder of the work was never completed. All the checks were payable to the son, his wife, or the corporation.

When the business failed to complete the work in a timely fashion and refused to refund any of the payments received, defendant was charged with the offenses at issue here.

I.

Defendant first contends that structural error occurred when the original trial judge filed a grievance against defendant's attorney in an unrelated matter and subsequently ruled on a number of pre-trial motions, which rulings, after the judge later disqualified himself, were adopted without independent review by the new judge. We disagree.

Not all errors of constitutional significance require reversal of a defendant's conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Most such errors are properly susceptible to harmless error analysis, permitting an appellate court to affirm the conviction if it can say that the error did not contribute to the jury's determination of guilt beyond a reasonable doubt. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Key v. People, 865 P.2d 822 (Colo. 1994). Only those errors that pervasively prejudice the entire course of the proceedings so as to render the verdict in essence no verdict at all are structural defects that mandate reversal. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Key v. People, supra.

Observing that pre-trial rulings dictate the "procedure and content" of the subsequent proceedings, defendant argues that the effect of pre-trial rulings by a purportedly biased judge are such a structural defect mandating reversal. We are not persuaded.

No Colorado appellate court has previously addressed this issue. However, we note that only a few types of very serious errors have been held to be structural defects mandating reversal. They include: complete deprivation of the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); trial before a biased judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); and improper jury instructions that usurp the jury's role of determining guilt on every material element of the charged offense, People v. Vance, 933 P.2d 576 (Colo.1997); see People v. Price, 969 P.2d 766 (Colo.App.1998)

.

The essence of a structural defect is that it must, in every case in which it arises, render appellate review meaningless because there is no proper basis on which the judgment might be affirmed. Sullivan v. Louisiana, supra; Sherman v. Smith,

89 F.3d 1134 (4th Cir.1996).

Defendant has failed to show that non-dispositive pre-trial rulings, regardless of their subject matter, made by a judge who later disqualifies himself from presiding over the remainder of a case, renders the resulting jury verdict in essence no verdict at all or that review of such orders for abuse of discretion or harmless error would be meaningless.

Thus, while the better practice would have been for the judge to disqualify himself immediately upon filing the grievance against defendant's attorney, we conclude that applying the original judge's pre-trial rulings in the remainder of the proceedings, without an independent review by the replacement judge, did not constitute structural error. Cf. Floyd v. Coors Brewing Co., 952 P.2d 797 (Colo.App.1997),

rev'd on other grounds

978 P.2d 663, 1999 WL 9769 (Colo.1999). This is particularly true here because, as analyzed below, we may consider on appellate review the propriety of the challenged rulings.

II.

Defendant next contends that, even if there was no structural error, the original judge's pre-trial rulings were erroneous and justify reversal. We find each ruling to be proper.

A.

Defendant asserts that the order admitting evidence of a prior offense, pursuant to CRE 404(b), to prove "plan, scheme, design, modus operandi, intent and preparation, [and] absence of mistake" was error. We disagree.

Before the trial court can admit evidence of other crimes, it must be satisfied, by a preponderance of the evidence, that the other crime occurred and that the defendant committed it. People v. Garner, 806 P.2d 366 (Colo. 1991). The trial court must then determine that the evidence is offered for some proper purpose independent of the prohibited inference that the defendant has a bad character and committed the charged offense in conformity with that bad character, and that the evidence is logically relevant. People v. Spoto, 795 P.2d 1314 (Colo. 1990).

Our review of the record reveals that the trial court articulated and properly applied the four-part test for admissibility set forth in People v. Spoto, supra,

and People v. Garner, supra. The trial court accordingly permitted the prosecution to present evidence of defendant's prior theft conviction involving a landscaping business and the building of garages in Denver, as reviewed by this court in People v. Collie, 682 P.2d 1208 (Colo.App.1983), but excluded evidence of more recent transactions involving repairs and sales of boats in Kentucky for which prosecution was then pending. The trial court gave a proper instruction to the jury regarding the limited purposes for which the evidence was admitted.

Defendant contends that the facts surrounding his prior theft conviction are so different from the circumstances giving rise to the charges here that those acts cannot properly be considered similar transactions. He notes that, in the transactions involved in his prior conviction, he received the customer payments in his own name and deposited them in his own account, that he contracted to build garages rather than landscaping, and that he was not acting on behalf of a corporation. While these distinctions appear to be correct based upon the record before us, we agree with the trial court's finding that the prior transactions are "virtually identical" to those at issue here.

Our examination of the record reveals nothing else to support defendant's contention that the facts of People v. Collie, supra,

are so different than those presented here that those acts could not be considered similar transactions pursuant to CRE 404(b). Thus, we perceive no abuse of discretion in the trial court's ruling admitting that evidence.

B.

Defendant also contends that the original judge erred by denying his attorney's first motion to withdraw. We disagree.

The trial court should grant court-appointed counsel's motion to withdraw only if it is satisfied that counsel cannot give the defendant effective representation because of deterioration of the attorney-client relationship. We review a denial of appointed counsel's motion to withdraw for abuse of discretion. People v. Schultheis, 638 P.2d 8 (Colo. 1981).

Here, defense counsel asserted at the hearing on the motion to withdraw that he could not be effective on behalf of defendant because defendant was not cooperating in the preparation of the defense. Defendant, however, stated that he was entirely satisfied with his attorney's performance and did not want him to withdraw. Neither defendant nor his attorney represented that there was any deterioration in the attorney-client relationship, other than the alleged non-cooperation, or that there was any conflict between them. The court properly noted that, under the circumstances, defendant's alleged non-cooperation in preparing his own defense was not something that could be cured by the substitution of new counsel.

Defendant further contends that the trial court deprived him of his constitutional right to self-representation by this statement at the hearing on the motion to withdraw:

We're going nowhere at this stage because [defense counsel] can't be prepared because [defendant] is not working with him.... But I'm very hesitant to allow [defense counsel] to withdraw because [defendant] needs to be represented, and he certainly can't represent himself.

We are not persuaded that, without more, this comment can be construed as anything other than an expression that the case was a complicated one involving more than 4,000 pages of discovery, numerous exhibits, and complex legal issues, along with the court's understandable frustration with the delays preceding that hearing. Especially in light of the fact that defendant did not want his attorney to withdraw and was planning to hire private counsel if the motion was granted, we are not persuaded that the trial court abrogated defendant's constitutional right to self-representation.

We perceive no abuse of discretion in the trial court's ruling denying defense counsel's motion to withdraw.

C.

Defendant next contends that the trial court's ruling denying him permission to test, drill, or sample the victims' property deprived him of his constitutional right to present evidence in his own defense. We disagree.

Under the Sixth Amendment, a defendant has a due process right to present evidence in his defense. The right is not absolute, however, and the...