People v. Gee

• Decision Date: 22 October 2015
• Docket Number: Court of Appeals No. 12CA1217
• Citation: 2015 COA 151,371 P.3d 714
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Robert Juan GEE, Defendant–Appellant.
• Court: Colorado Court of Appeals

371 P.3d 714

2015 COA 151

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.Robert Juan GEE, Defendant–Appellant.

Court of Appeals No. 12CA1217

Colorado Court of Appeals, Div. I.

Announced October 22, 2015

Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Borquez Law Office, Robert P. Borquez, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE BERGER

¶ 1 Defendant, Robert Juan Gee, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree assault, first degree burglary, and aggravated robbery. He also appeals the sentence imposed and the trial court's order denying his motion for a new trial.

¶ 2 Gee contends that the trial court erred in (1) admitting evidence that he fled to Michigan while awaiting trial; (2) adjudging him a habitual criminal; (3) denying his request for an extended proportionality review of his sentence; and (4) denying his motion for a new trial. We address and reject each of these contentions and affirm.

I. Facts and Procedural History

¶ 3 Gee's codefendant, Lamar Wilson, testified at Gee's trial that he, Gee, and Maurice Ray went to the victim's apartment with the intent to rob him of money and drugs. According to Wilson's trial testimony, Gee and Ray had planned the robbery, and they all had guns: Gee and Ray had 9 mm handguns, and Wilson had a .22 caliber revolver.

¶ 4 Wilson testified that Gee knocked on the victim's door, the victim opened the door, and then he tried to close it again. Wilson said that Gee then fired one shot through the door, went inside, and asked where the money and “dope” were. He heard Gee say, “Do you want to die?” and then he heard several more shots. He testified that, after leaving the apartment, Gee said, “I think he's dead.”

¶ 5 The victim testified that earlier that day, he had gone to the bank and cashed his paycheck for $318. That night, when he returned to his apartment complex, he saw two people behind him as he was approaching his apartment. After he opened the door to his apartment, he heard a shot.

¶ 6 The victim testified that one of the assailants wore a black coat with fur fringe and the other wore a hooded sweatshirt. They both had masks and guns. He testified that he tried to shut the door, but it would not close all the way. This was the last thing he remembered before the police came and he was taken to the hospital. He had been shot five times.

¶ 7 A woman who lived near the victim testified that she was watching television when she heard gunshots. She cracked her door open and saw three people running in the victim's apartment building. They wore black “hoodies” and white masks. She closed her door and called 911.

¶ 8 The building manager for an apartment complex adjacent to the victim's building also testified that he heard gunshots. He then saw three people come out of the front entryway of the victim's apartment complex. They were wearing dark clothing with their hoods pulled down to cover their faces and their hands were in their pockets. He saw them get into a waiting sports utility vehicle (SUV)—it was running and its lights were on—and he noticed part of its license plate number before it drove away. When the police arrived, he gave them a description of the SUV and the partial license plate number, and he told them the direction in which the car had headed.

¶ 9 The police located the SUV and arrested the four occupants (Gee, Wilson, Ray, and the driver, Melissa Robinson). The police found a 9 mm handgun on the floor next to the front passenger seat where Gee had been sitting. Forensic testing established that it was the gun used to shoot the victim.

¶ 10 In the SUV, the police also found three masks, two dark-colored hooded sweatshirts, and a black jacket with fur fringe on the hood with Gee's wallet in the pocket. $344 was found in Wilson's pants pocket.

¶ 11 Gunshot residue (GSR) testing revealed GSR on both of Ray's hands and on his face, on Wilson's face, and on both of Gee's hands and on his face.

¶ 12 Wilson pleaded guilty to one count of aggravated robbery with a stipulated sentence of four to sixteen years' imprisonment. As part of his plea agreement, he agreed to testify at Gee's trial. Ray was tried separately and did not testify at his trial or at Gee's. He was convicted of first degree burglary and received a lengthy sentence.

¶ 13 Gee was charged with various offenses including attempted first degree murder (after deliberation). He did not testify. The jury acquitted him of attempted first degree murder but convicted him of first degree assault with a deadly weapon under section 18–3–202(1)(a), C.R.S

. 2015; first degree burglary as a crime of violence under sections 18–4–202(1) and 18–1.3–406(2)(a)(I)(A), C.R.S. 2015; and aggravated robbery with a deadly weapon under section 18–4–302(1)(b), C.R.S. 2015.

¶ 14 The trial court found that all three convictions were for crimes of violence. The court also found that the prosecution had proved beyond a reasonable doubt that Gee had two prior felony convictions and sentenced him as a habitual criminal under section 18–1.3–801(1.5)(a), C.R.S. 2015

. Based on these findings, the court sentenced Gee to 48 years' imprisonment for each conviction, to be served consecutively, for an aggregate term of 144 years.

¶ 15 Shortly after sentencing, Gee filed a motion for a new trial under Crim. P. 33(c)

claiming newly discovered evidence. The trial court denied the motion.

II. Evidence of Flight

¶ 16 After his arrest, Gee was released on bond. On January 12, 2011, he appeared at the preliminary hearing, which was continued to February 2.

¶ 17 Also on January 12, Robinson, Gee's girlfriend, had an interview with the district attorney and the police concerning her knowledge about the crime. She apparently provided information that incriminated Gee. Robinson's statement was given to the defense within a few weeks of the interview.

¶ 18 Gee failed to appear at the February 2 preliminary hearing, and a warrant was issued for his arrest. Four months later, Gee was located in Michigan and returned to Colorado for trial.

¶ 19 On the third day of trial, the prosecutor told the trial court that he intended to call the district attorney's office investigator to testify. The investigator had assisted in locating Gee. The prosecutor stated that the investigator's testimony would establish evidence of flight, which he asserted was admissible to show Gee's consciousness of guilt.

¶ 20 Defense counsel objected, arguing that such evidence falls under CRE 404(b)

and the prosecution had not provided pretrial notice of its intent to introduce the evidence. The trial court overruled the objection, stating that evidence of Gee's flight was not CRE 404(b) evidence and that it was relevant and admissible to show Gee's mental state in fleeing the jurisdiction.

¶ 21 The investigator testified regarding Gee's failure to appear at the February 2 hearing, the issuance of the arrest warrant, and locating Gee.

¶ 22 Gee argues that the trial court erred in admitting this testimony because he contends that evidence of flight to show consciousness of guilt is admissible only under CRE 404(b)

, defense counsel had requested disclosure of CRE 404(b) evidence pretrial, and the prosecution did not provide timely notice of its intent to introduce the evidence. We reject this argument.

¶ 23 We review a trial court's decision to admit evidence for an abuse of discretion. People v. Perry, 68 P.3d 472, 475 (Colo.App.2002)

. A trial court abuses its discretion if its decision was manifestly arbitrary, unreasonable, or unfair, or if it misconstrued or misapplied the law. People v. Pollard, 2013 COA 31M, ¶ 10, 307 P.3d 1124.

¶ 24 CRE 404(b)

prohibits the admission of “[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show that he acted in conformity therewith.” Such evidence may be admissible for other purposes “provided that upon request by the accused, the prosecution in a criminal case ... provide[s] reasonable notice in advance of trial ... of the general nature of any such evidence it intends to introduce at trial.” Id.

¶ 25 Gee argues that evidence that he fled to Michigan constituted evidence that he violated section 18–8–212(1), C.R.S.2015

, which provides that a knowing violation of bail bond conditions or a knowing failure to appear for trial or other proceedings is a class 6 felony. Gee contends that because this evidence constituted evidence of other crimes, it was subject to CRE 404(b).

¶ 26 “Evidence of a defendant's flight may be relevant to show consciousness of guilt....” Perry, 68 P.3d at 475

. In this context, flight means that “after the charged crime the accused acted in ways apparently calculated to avoid detection, arrest, prosecution, or conviction.” 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:4 (4th ed. 2015). Evidence of flight may be relevant in a criminal trial because it suggests a guilty mind, and “[f]rom a guilty mind, guilt itself may be inferred.” People v. Summitt, 132 P.3d 320, 324 (Colo.2006) ; see also

Wilkinson v. People, 170 Colo. 336, 341–42, 460 P.2d 774, 777 (1969). This evidence renders the fact to be proved—that the defendant committed the charged offense—more probable than it would be without such evidence. See

Summitt, 132 P.3d at 324 (citing CRE 401). Thus, evidence of Gee's flight was relevant under CRE 401.

¶ 27 CRE 404(b)

generally governs evidence of a defendant's other crimes or bad acts that are extrinsic to the events charged. See

People v. Cooper, 950 P.2d 620, 624 (Colo.App.1997), rev'd on other grounds, 973 P.2d 1234 (Colo.1999). However, “when some offenses committed in a single criminal episode become ‘other acts' because the defendant is indicted [or charged] for less than all of his actions,” CRE 404(b) is inapplicable. People v. Quintana, 882 P.2d 1366, 1372 (Colo.1994) (internal quotation marks omitted)...