People v. Flynn

• Decision Date: 11 July 2019
• Docket Number: Court of Appeals No. 16CA1059
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas T. FLYNN, Defendant-Appellant.
• Court: Colorado Court of Appeals

456 P.3d 75

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Thomas T. FLYNN, Defendant-Appellant.

Court of Appeals No. 16CA1059

Colorado Court of Appeals, Division V.

Announced July 11, 2019

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Defendant, Thomas T. Flynn, appeals his judgment of conviction entered on jury verdicts finding him guilty of menacing, vehicular eluding, reckless endangerment, failure to stop at a red light, and speeding. We affirm.

I. Background

¶ 2 In 2015, William Garibay was driving home from work when he noticed a Cadillac driving in front of him in the left lane. When Garibay’s car approached the Cadillac, the driver of the Cadillac stepped on his brakes, causing Garibay to brake abruptly. The Cadillac then moved into the right lane, and its driver started yelling profanities at Garibay. The driver held a pistol across his chest and pointed it at Garibay. Garibay called 911, provided the dispatcher with the Cadillac’s temporary license plate number, and attempted to follow the vehicle until he lost sight of it.

¶ 3 Garibay met with a responding police officer and provided a physical description of the driver, indicating he would be able to recognize the driver. In the meantime, a police officer located the Cadillac and gave chase, but the Cadillac driver eluded the officer. During the investigation, police determined that the temporary tag was associated not with a Cadillac, but rather with an older model Buick sedan registered to Flynn’s father. Garibay then identified Flynn in a photographic array as the driver of the Cadillac. The police never located the Cadillac or the gun. A jury found Flynn guilty of menacing, vehicular eluding, reckless endangerment, failure to stop at a red light, and speeding. Flynn now appeals the convictions.

II. Analysis

¶ 4 Flynn contends that a new trial is required because the trial court erred by (1) denying his motion to continue; (2) determining that no due process violation resulted from the prosecution’s failure to disclose certain evidence; and (3) giving instructions to the jury that lowered the prosecution’s burden of proof. We address and reject each contention in turn.

A. Motion to Continue

¶ 5 Flynn first argues that the trial court erred in denying his motion to continue his trial. Because he sought a continuance to obtain substitute defense counsel, Flynn argues that the trial court’s denial of his motion violated his Sixth Amendment rights. We disagree.

1. Additional Facts

¶ 6 At the pretrial conference, one week before trial, Flynn’s court-appointed attorney requested a continuance of trial, noting Flynn’s request to substitute counsel:

MS. LANZEN: The other thing that Mr. Flynn had noted to me is that it’s his intent to hire counsel of his choice. He has been working and saving money to get a retainer to hire an attorney. It was his hope that he would have that attorney today. However, he needed a little more time. He said he was going to go over to Harvey Steinberg’s office afterwards to see if he can set up the retainer.

We would ask the Court to vacate the jury trial.

¶ 7 The trial court denied this motion, in part because the request was "very last minute" and there was "no indication that there’s other counsel who is actually going to enter his or her appearance in this matter." The court described the motion as a tactic to delay trial.

¶ 8 On the first day of trial, defense counsel renewed her request for a continuance, again noting that Flynn wanted to hire a private attorney for trial:

MS. LANZEN: He originally hired an attorney. That attorney had to withdraw. My office was appointed. And then after some limited contact with Mr. Flynn, he had made the decision to hire an attorney. He just didn’t have the money. ...

He said he had contacted Howard – Harvey Steinberg and wanted to retain him to represent him at the trial and so wanted me to ask the Court to continue this so that he could have the attorney of his choice.

¶ 9 The court again denied the request. The court noted that "[h]ad another attorney entered or even been present today, I might have considered [a continuance]."

2. Standard of Review

¶ 10 "A motion for a continuance falls within ‘the sound discretion of the trial court.’ " People v. Brown , 2014 CO 25, ¶ 19, 322 P.3d 214 (quoting People v. Hampton , 758 P.2d 1344, 1353 (Colo. 1988) ). Thus, we review the trial court’s denial of a motion for a continuance for an abuse of discretion. Id. In reviewing the trial court’s findings of fact, we will defer to such findings "so long as [they] are supported by evidence in the record." Id. at ¶ 26.

3. Applicable Law

¶ 11 The Sixth Amendment affords criminal defendants the right to be represented by counsel of their choice. U.S. Const. amend. VI ; see Rodriguez v. Dist. Court , 719 P.2d 699, 705 (Colo. 1986). This right is entitled to "great deference." Rodriguez , 719 P.2d at 705. Nevertheless, the right is not absolute and must in some cases yield when "fundamental considerations other than a defendant’s interest in retaining a particular attorney are deemed of controlling significance." Id. at 706.

¶ 12 In Brown , the supreme court set forth an eleven-factor test for trial courts to use when analyzing a request for a continuance to substitute defense counsel. Under Brown , ¶ 24, a trial court must consider the following:

1. the defendant’s actions surrounding the request and apparent motive for making the request;

2. the availability of chosen counsel;

3. the length of continuance necessary to accommodate chosen counsel;

4. the potential prejudice of a delay to the prosecution beyond mere inconvenience;

5. the inconvenience to witnesses;

6. the age of the case, both in the judicial system and from the date of the offense;

7. the number of continuances already granted in the case;

8. the timing of the request to continue;

9. the impact of the continuance on the court’s docket;

10. the victim’s position, if the victims’ rights act applies; and

11. any other case-specific factors necessitating or weighing against further delay.

No one factor is dispositive, "and the weight accorded to each factor will vary depending on the specific facts at issue in the case." Id.

¶ 13 Our supreme court has recently made clear that Brown does not apply in every case, however. In People v. Travis , the court held that, while Brown is not limited to its facts, it is inapplicable when "the defendant expresses a general interest in retaining counsel, but has not identified replacement counsel or taken any steps to retain any particular lawyer." 2019 CO 15, ¶ 14, 438 P.3d 718. Applying Brown in such circumstances would require the trial court to speculate about the availability of unknown counsel and the amount of time unknown counsel would require preparing for trial. Id. at ¶ 15. Thus, an analysis pursuant to Brown "would require an unrealistic level of speculation by the trial court." Id.

4. Application

¶ 14 Contrary to both parties’ arguments, we need not determine whether the trial court properly applied Brown ’s eleven-factor test. Like the defendant in Travis , Flynn’s interest in retaining alternate counsel was too tenuous to be analyzed by the trial court pursuant to Brown . The inapplicability of Brown is highlighted by the fact that at least two factors cannot even begin to be considered here: (1) the availability of counsel and (2) the length of a continuance necessary to accommodate counsel. See Travis , ¶ 15. Further, until the length of the resulting delay is known, the trial court would be hard-pressed to fully consider other Brown factors, such as the potential prejudice to the prosecution and the inconvenience to witnesses.

¶ 15 Although Flynn identified an attorney by name in his requests for a continuance, there was no indication that this attorney was available, or willing, to take Flynn’s case.¹ Indeed, Flynn only said he was going to visit the named attorney’s office "to see if he can set up the retainer." Cf. Ronquillo v. People , 2017 CO 99, ¶ 36, 404 P.3d 264 (the defendant sought to fire retained counsel and proceed with a public defender, whom he was eligible to retain); Brown , ¶ 33 (newly retained counsel had already filed an entry of appearance). Flynn’s nascent desire to retain another attorney was, at best, aspirational. Under such uncertain circumstances, applying the Brown factors "would require an unrealistic level of speculation by the trial court." Travis , ¶ 15.²

¶ 16 Because the findings set forth in Brown were not required here, we review the trial court’s decision to deny the continuance for a "clear abuse of discretion." Id. at ¶ 16 (quoting People v. Crow , 789 P.2d 1104, 1106 (Colo. 1990) ).

¶ 17 In denying Flynn’s requests for a continuance, the trial court considered Flynn’s incentive to delay trial — particularly in light of his attorney’s representations that Flynn had not been in contact with her during her preparations for trial — and the lack of evidence indicating that he had taken any steps at all to retain private counsel. The court also noted that it might have considered a continuance if private counsel had filed an entry of appearance, or even been present to indicate a conditional intent to represent Flynn. Because nothing suggests the trial court abused its discretion, we perceive no error.

B. Suppression of Material Evidence

¶ 18 Flynn next argues that the trial court erred in determining that no due process violation occurred when the prosecution suppressed exculpatory, material evidence.

1. Additional Facts

¶ 19 At trial, Detective Dean Groff testified as to the efforts he undertook to locate the Cadillac or connect it to Flynn. Groff testified that for a couple weeks, he "made special efforts daily" to drive by...