People v. Dunlap

Decision Date07 November 2005
Docket NumberNo. 01CA1082.,01CA1082.
Citation124 P.3d 780
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Nathan Jerard DUNLAP, Defendant-Appellee and Cross-Appellant.
CourtColorado Supreme Court

Ken Salazar, Attorney General, Clemmie Parker Engle, Assistant Attorney General, Paul E. Koehler, Assistant Attorney General, Denver, Colorado; James J. Peters, District Attorney, Eva E. Wilson, Deputy District Attorney, Centennial, Colorado, for Plaintiff-Appellant and Cross-Appellee.

Philip A. Cherner, Denver, Colorado; Michael Heher, Captain Cook, Hawaii, for Defendant-Appellee and Cross-Appellant.

Opinion by Judge MARQUEZ.

The People appeal the order granting partial relief to defendant, Nathan Jerard Dunlap, on his Crim. P. 35(c) motion. By cross-appeal, defendant challenges the partial denial of his motion. We reverse the order to the extent it vacated the sentences for second degree kidnapping and remand for correction of the mittimus to reflect reinstatement of the original convictions and sentences. We otherwise affirm.

Table of Contents

Facts and Procedural History

The People's Appeal

I. Jury Instructions Defendant's Appeal

II. Ineffective Assistance of Counsel

III. Deputy District Attorney's Testimony

IV. Information

V. Suppression of Statements and Evidence

VI. Polygraph Issues

VII. Curtis Advisement

VIII. Closing Argument

IX. Jury Instructions

X. Right of Defendant and Counsel to be Present at Trial

XI. Sufficiency of the Evidence

XII. Apprendi Sentencing Issues

(This Table of Contents and the section headings throughout this opinion are offered solely for the convenience of the reader and do not control or modify the substance of each section.)

Facts and Procedural History

In 1993, a Burger King restaurant was robbed while the assistant manager, a manager trainee, and a crew member were working there. The following month, defendant was arrested for an unrelated quadruple murder at the Chuck E Cheese restaurant in Aurora.

In 1995, while he was in custody on the murder charges, defendant was charged with the crimes at issue here relating to the Burger King robbery. A jury found defendant guilty of two counts of second degree kidnapping, one count of aggravated robbery, and one count of theft at the Burger King restaurant. One second degree kidnapping count was enhanced to a class two felony because the victim, the manager trainee, was also the victim of a robbery; the other kidnapping count, concerning the crew member, was enhanced to a class three felony because a deadly weapon was used.

Defendant was sentenced to consecutive terms of twenty and thirty-five years for second degree kidnapping and twenty years for aggravated robbery, and a concurrent six-year term for theft. A division of this court affirmed defendant's conviction and sentence. People v. Dunlap, (Colo.App. No. 96CA0329, Feb. 5, 1998)(not published pursuant to C.A.R. 35(f)). The Colorado Supreme Court denied defendant's petition for certiorari review.

After holding a hearing on defendant's Crim. P. 35(c) motion, the trial court vacated the sentences for the two second degree kidnapping counts and ordered that defendant be resentenced on those counts only. The court denied the remainder of defendant's motion. Both of defendant's second degree kidnapping convictions were later reduced to class four felonies, and defendant was sentenced to consecutive ten-year terms on those counts.

The People's Appeal

As a threshold issue, we disagree with defendant's contention, raised at oral arguments, that the People's reply brief should be struck because it raises new issues not found in the opening brief. Only one issue, that regarding the trial court's standard of review in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is arguably a new issue not raised in the People's opening brief. However, in light of our disposition below, we deny the motion to strike.

I. Jury Instructions

The People contend the trial court erred by vacating the sentences for second degree kidnapping after concluding that the instructions and verdict forms did not adequately instruct the jury that the sentencing enhancers must be proved beyond a reasonable doubt. We agree.

Second degree kidnapping is generally a class four felony. It is a class three felony if it is "accomplished by the use of a deadly weapon," § 18-3-302(4)(a)(II), C.R.S.2003, and it is a class two felony if "[t]he person kidnapped is a victim of a robbery." Section 18-3-302(3)(b), C.R.S.2003.

When a trial court misinstructs the jury on an element of an offense, either by omitting or misdescribing that element, that error is subject to constitutional harmless or plain error analysis. Griego v. People, 19 P.3d 1 (Colo.2001). Where counsel fails to object or to tender instructions on the omitted elements, appellate courts review for plain error. People v. Stewart, 55 P.3d 107 (Colo.2002); see People v. Sepulveda, 65 P.3d 1002 (Colo.2003).

At trial, defendant made a blanket objection to the instructions on grounds that the matter should not have gone to the jury and that the instructions were erroneous. He generally objected to all elemental instructions as being "inaccurate descriptions of Colorado law" and specifically objected to one instruction as containing "inaccurate definitional instructions," but he made no specific objection to any other individual instruction or to the verdict forms. Therefore, we review for plain error. See Crim. P. 30 (only grounds specified in objections to instructions shall be considered on review); Moore v. People, 925 P.2d 264 (Colo.1996); Thomas v. People, 820 P.2d 656 (Colo.1991).

Plain error occurs when the error so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. Garcia, 28 P.3d 340 (Colo.2001). In the context of instructional error, plain error occurs when a review of the entire record demonstrates a reasonable possibility that the improper instruction contributed to the defendant's conviction. People v. Stewart, supra; Espinoza v. People, 712 P.2d 476 (Colo.1985).

Although a sentence enhancement provision is not an element of the offense charged, the enhancing factor must be proved beyond a reasonable doubt. Armintrout v. People, 864 P.2d 576 (Colo.1993); Beigel v. People, 683 P.2d 1188 (Colo.1984).

Here, the trial court provided proper instructions on (1) the definition of reasonable doubt and the requirement that each element of each count must be proved beyond a reasonable doubt; (2) the elements of second degree kidnapping, aggravated robbery, and robbery; and (3) the definition of a deadly weapon.

The verdict form for the second degree kidnapping of the manager trainee included the following:

[ ] [Manager trainee] was the victim of a robbery.

[ ] [Manager trainee] was not the victim of a robbery.

[ ] The crime of SECOND DEGREE KIDNAPPING was accomplished by the use of a deadly weapon.

[ ] The crime of SECOND DEGREE KIDNAPPING was not accomplished by the use of a deadly weapon.

The verdict form pertaining to the crew member contained only the latter two interrogatories regarding the use of a deadly weapon. No separate crime of violence instruction was given, and the enhancement factors were not included in the elemental instruction defining second degree kidnapping.

In ruling on defendant's Crim. P. 35 motion, the trial court held that the second degree kidnapping verdict forms did not set forth the burden of proof and the interrogatories gave the jury no guidance as to any standard by which it was to reach its decision concerning the enhancers. The court concluded that there was a reasonable probability that defendant could have been prejudiced by this error. The People acknowledge in their reply brief that it was error that no single instruction expressly told the jury that it could find the existence of an enhancement factor only if that factor had been proved beyond a reasonable doubt.

We agree that the instructions and verdict form did not adequately inform the jury that it must find the enhancement factors beyond a reasonable doubt. See People v. Russo, 677 P.2d 386 (Colo.App.1983)(instructions and verdict forms were inadequate where jury was not instructed on elements of crime of violence or that reasonable doubt standard applied, but error was harmless), rev'd on other grounds, 713 P.2d 356 (Colo.1986). But see Beigel v. People, supra (reversible error when factor was not included in elemental instruction and the verdict form interrogatories did not state the reasonable doubt standard).

A.

We nevertheless agree with the People that there was no plain error.

Failure to instruct the jury properly does not constitute plain error where the subject of the error in the instruction is not contested at trial or where evidence of the defendant's guilt is overwhelming. Bogdanov v. People, 941 P.2d 247, amended, 955 P.2d 997 (Colo.1997); see People v. Fichtner, 869 P.2d 539 (Colo.1994).

Here, the elements of robbery were completely subsumed in the aggravated robbery instruction, and the jury was instructed that it must find defendant guilty of aggravated robbery beyond a reasonable doubt. The trial court concluded that the evidence of defendant's guilt was not overwhelming, but it stated, "Defendant did not dispute that the robbery occurred. He insisted that he was not the perpetrator."

We conclude there is no dispute that the robbery occurred and there is no reasonable...

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