People v. Curren

• Citation: 228 P.3d 253
• Decision Date: 25 November 2009
• Docket Number: No. 09CA0872.,09CA0872.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John Estel CURREN, Defendant-Appellee.
• Court: Court of Appeals of Colorado

228 P.3d 253

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John Estel CURREN, Defendant-Appellee.

No. 09CA0872.

Colorado Court of Appeals, Div. I.

November 25, 2009.

COPYRIGHT MATERIAL OMITTED

Donald Quick, District Attorney, Michael J. Milne, Senior Deputy District Attorney, Brighton, Colorado, for Plaintiff-Appellant.

Thomas K. Carberry, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge ROY.

The prosecution appeals from an order granting defendant John Estel Curren's Crim. P. 35(c) motion which vacated his conviction on two counts of felony first degree murder, and ordered a new trial based on an actual conflict of interest of trial counsel. More specifically, the prosecution argues (1) there was no actual conflict of interest that adversely affected trial counsel's performance; (2) trial counsel investigated the allegation giving rise to the conflict of interest, determined it to be groundless, and proceeded in good faith; (3) there was only a potential conflict of interest; and (4) defendant failed to show that it resulted in prejudice to him as required by Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We affirm.

In June 1997, the corpses of two drug dealers were discovered in a ditch. The investigation ultimately led to defendant, who, along with four others, allegedly assaulted and suffocated the drug dealers, took their money and drugs, and deposited their bodies in the ditch.

Following his arrest, defendant retained private trial counsel (trial counsel) to represent him. Defendant was charged with two counts of after deliberation first degree murder, § 18-3-102(1)(a), C.R.S.2009; two counts of felony first degree murder, § 18-3-102(1)(b), C.R.S.2009; two counts of conspiracy to commit first degree murder, §§ 18-2-201(1), 18-3-102, C.R.S.2009; two counts of conspiracy to commit aggravated robbery, §§ 18-2-201(1), 18-4-303, C.R.S.2009; two counts of aggravated robbery, § 18-4-303; and two mandatory sentence enhancers for crimes of violence, § 18-1.3-406, C.R.S.2009. Prior to trial scheduled in 1998, defendant absconded to Mexico.

Defendant was arrested in Mexico and returned to Colorado in 2001. Defendant, still represented by trial counsel, became concerned that trial counsel was not adequately preparing his case and, therefore, retained second counsel to review the work of trial counsel. Defendant signed a release authorizing trial counsel to provide the discovery materials to second counsel.

Defendant told second counsel that trial counsel had advised him to flee to Mexico (the allegation), and that he acted upon that advice. Second counsel advised trial counsel of the allegation following a motions hearing in this case. Trial counsel and second counsel then argued outside the courtroom, causing the court to request that they leave the building. The two continued arguing in the courthouse parking lot. Trial counsel took great umbrage at the allegation and refused to share the discovery materials or cooperate with second counsel until second counsel entered an appearance for defendant in the criminal proceedings.

Trial counsel's partner and second counsel then met with defendant at defendant's request. It is not clear from the testimony whether trial counsel's partner actually asked defendant if he made the allegation; however, it is clear that he advised defendant he would have to discharge either trial counsel or second counsel. Then, defendant stated he would work with trial counsel. Trial counsel's partner testified that he was aware that if defendant made the allegation, regardless of its truth, then trial counsel would have to withdraw due to a conflict of interest. At the end of the discussion, trial counsel's partner assumed that defendant had not made the allegation and that withdrawal by trial counsel was not necessary. Neither trial counsel, his partner, nor second counsel ever informed the trial court of the allegation. The prosecution relied heavily on the failure to inform the court in arguing that defendant had not made the allegation.

The trial court granted defendant's motion in limine excluding any evidence of his having absconded to Mexico. According to trial counsel, during trial, he advised defendant not to testify for several reasons, primarily dealing with defendant's demeanor, and none dealing with the allegation. Defendant did not testify, which later formed the basis for a separate claim of ineffective assistance of trial counsel.

Before trial, the prosecution dismissed the conspiracy counts. The jury found defendant not guilty of premeditated first degree murder and its lesser included counts of second degree murder and manslaughter; not guilty of one, and guilty of the other, aggravated robbery count; and guilty of both felony murder counts. Defendant received two consecutive life sentences on the felony murder convictions and a concurrent sentence of twenty-four years for the aggravated robbery conviction.

On direct appeal, defendant's convictions for felony murder were affirmed; however, defendant's conviction for aggravated robbery was vacated because it merged into one of the felony murder convictions. People v. Curren, 2005 WL 1303964 (Colo.App. No. 02CA1144, June 2, 2005) (not published pursuant to C.A.R. 35(f)).

After the mandate issued from the direct appeal, defendant filed a Crim. P. 35(c) motion, alleging trial counsel labored under an actual conflict of interest. Following a hearing, the trial court concluded, contrary to the allegation, that trial counsel had not advised defendant to abscond to Mexico. However, it also found defendant had made the allegation, which established an actual conflict of interest because it placed trial counsel in the position of having to defend his client as to the pending charges and himself as to the allegation. The trial court vacated defendant's convictions and ordered a new trial. The prosecution appeals.

I. Defendant's Preliminary Arguments

At the outset, defendant contends that: (1) the appeal should be dismissed for lack of jurisdiction because the notice of appeal was untimely; (2) the appeal should be dismissed because the prosecution judicially admitted that if defendant had made the allegation, then an actual conflict existed; and (3) this appeal does not toll the time within which a new trial must be held because the appeal is not an interlocutory appeal.

A. Interlocutory Appeal

Defendant contends that this court does not have jurisdiction because the prosecution failed to file a timely notice of appeal. His argument is predicated on this being an interlocutory appeal. We disagree.

A proceeding is interlocutory if it intervenes between the commencement of and the final decision in a case. People v. Medina, 40 Colo.App. 490, 492, 583 P.2d 293, 296 (1978). An appeal is not interlocutory when it is from a final order after trial. People v. Voss, 191 Colo. 338, 341, 552 P.2d 1012, 1014 (1976).

Under C.A.R. 4(b), the notice of appeal must be filed within forty-five days after the entry of a final judgment or order. A final judgment is generally defined as one that ends the particular action in which it is entered, leaving nothing further for the pronouncing court to do in order to completely determine the rights of the parties involved. Stillings v. Davis, 158 Colo. 308, 310, 406 P.2d 337, 338 (1965).

However, section 16-12-102(1), C.R.S. 2009, specifically provides that, in a criminal proceeding, an order of the trial court granting a new trial is a final order that is immediately appealable by the prosecutor. See People v. Vance, 933 P.2d 576, 577 n. 2 (Colo. 1997), disapproved of on other grounds by Griego v. People, 19 P.3d 1, 8 (Colo.2001); People v. Smith, 921 P.2d 80, 82 (Colo.App. 1996).

Because an order granting a new trial is a final order, the prosecution was required to file this appeal within forty-five days of the order, which it did. Accordingly, we conclude that the notice of appeal was timely.

B. Speedy Trial

Defendant also argues that if we determine the appeal is not interlocutory, then this appeal does not toll speedy trial. We do not address the issue.

Following the filing of the notice of appeal in this matter, defendant filed a motion captioned "Assertion of Right to Speedy Trial and Demand for a Trial Date Within 6 Months of May 7, 2009." The apparent purpose of this motion was to preserve defendant's statutory right to a speedy trial. During oral argument, defense counsel represented that the trial court denied the motion after the notice of appeal was filed in this matter, concluded that this appeal tolled the time for retrial, and declined to schedule the trial as requested. While the motion is in the record on appeal, the trial court's ruling is not. Therefore, we do not address the argument. People v. Salazar, 964 P.2d 502, 507 (Colo.1998); People v. Newton, 940 P.2d 1065, 1069 (Colo.App.1996), aff'd in part, 966 P.2d 563 (Colo.1998).

C. Judicial Admission

Finally, defendant argues that we should dismiss the appeal because, at the hearing, the prosecution judicially admitted that if defendant had made the allegation, then an actual conflict existed. We are not persuaded.

A judicial admission is a formal, deliberate declaration that a party or his 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, is conclusive on the party making it, need not be written when stated orally in open court, and continues to have effect throughout the proceedings. Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo.1986); Miller v. Brannon, 207 P.3d 923 (Colo.App.2009); People v. Backus, 952 P.2d 846, 849 (Colo. App.1998).

Because a record on appeal speaks for itself, an appellate court may accept, but is not bound by, the concessions of counsel regarding the record's contents or inferences drawn therefrom. Backus, 952 P.2d at 850. An...