People v. Griffin

Decision Date16 April 2009
Docket NumberNo. 06CA0784.,06CA0784.
Citation224 P.3d 292
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Malaika GRIFFIN, Defendant-Appellant.
CourtColorado Court of Appeals

John W. Suthers, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Sarah A. Burtis, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RUSSEL.

Defendant, Malaika Griffin, appeals the judgment of conviction entered on jury verdicts finding her guilty of first degree murder and aggravated robbery. We affirm.

I. Background

Griffin lived next door to a carpenter. Each day after work, in front of Griffin's house, the carpenter unloaded, organized, and then reloaded tools into his truck. In May 1999, Griffin confronted the carpenter about this routine. After a heated argument, Griffin entered her house, returned with a gun, and shot the carpenter in the back, killing him.

Griffin fled to the home of an acquaintance. There, she stole a car at gunpoint and drove away.

Years later, Griffin was arrested in California. She was brought to Colorado and charged with first degree murder, aggravated robbery, and aggravated motor vehicle theft.

At trial, Griffin offered testimony that, if believed, would have allowed the jury to acquit her of murder on a theory of self-defense or to convict her of a lesser homicide. She testified that, just before the shooting, the carpenter had said, "I'm getting tired of you, bitch. I'm going to resolve this," as he reached into his truck. She also testified that she had not intended to shoot the carpenter but had fired the gun accidentally when startled by barking dogs. She did not contest the other charges.

The jury found Griffin guilty of all charges. The trial court sentenced her to life in prison for first degree murder, plus ten years in prison for aggravated robbery.1

II. Attorney Pro Hac Vice

Griffin argues that her convictions must be reversed because her trial attorney was not licensed to practice law in Colorado. We reject this argument.

Although the criminal rules do not expressly authorize the admission of attorneys pro hac vice, courts may act under the procedures set forth in C.R.C.P. 221. See Crim. P. 57(b); People v. Thomas, 195 P.3d 1162, 1164 (Colo.App.2008) (courts may apply civil rules in criminal cases if the criminal rules do not prescribe a specific procedure). Therefore, contrary to Griffin's view, courts may admit out-of-state attorneys to practice in criminal cases.

We will not address Griffin's other arguments about her attorney's admission because they depend on evidence outside the record. Cf. People v. Apodaca, 998 P.2d 25, 29 (Colo.App.1999) (review of an ineffective assistance of counsel claim on direct appeal is limited to the record because the trial court has not had the opportunity to consider any additional evidence). To the extent that Griffin's assertions may support a claim of ineffective assistance of counsel, they may be presented in a motion for postconviction relief. Cf. Ardolino v. People, 69 P.3d 73, 77 (Colo.2003) ("[D]efendants have regularly been discouraged from attempting to litigate their counsels' effectiveness on direct appeal.").

III. Notebook Entries

Griffin argues that the court erred in admitting evidence of opinions and ideas that she wrote in a notebook. We conclude that the court did not abuse its discretion in allowing the jury to consider those written entries. We further conclude that the court was not required to give a limiting instruction sua sponte.

A. Written Entries

While fleeing the shooting, Griffin dropped a backpack that contained, among other things, a spiral notebook. In the notebook, Griffin had written her thoughts on various subjects. At trial, the prosecution sought to introduce some of these writings to prove Griffin's culpable mental state.

Over Griffin's objection, the trial court admitted excerpts from the writings, including the following:

I am so sick of looking at white people!! I am so goddamn tired of them!! I wish I could kill those no good fagot, pedophilic, rapists, thieves & make it painful, (very).

. . . .

Since white "laws" never work for the cultural other anyway, the best thing to do is ignore them.

. . . .

We need to control whites for the good of womankind, look at all the destruct n they have created.... We must not only devalue whites to think they are less than usthey must be worth nothing ... their existence must have no human significance to Blacks. They must exist only to assure us of our Black value to act out & attribute our most destructive instincts.

. . . .

Fuck our enemies. They will kill us For sure. Black woman learn defense. Kill your enemies by any means: knives (are messy & you would have over power them so make sure they are weaker/asleep), guns (try to put a pillow over it so it won't be so loud or mabe a silencer), poison (this is what you have the greatest access to use it), hire killers (group together & hire hit people or mercenaries), make your own bomb (check the internet or people (Blk woman) who are in the military to get military bks), make molotav cocktails and throw them on your enemies.

. . . .

Go ahead, try it. Go ahead, do it. Go ahead, you are afraid, I know, To kill our enemy. I am not afraid to say it/do it . . . .

Enough talk, do it. Kill them. Do it often and subtlety, we have been patient too long. Our enemies taught us to be patient, wait for "their god" to come & save us, don't fight until then but be gd. servants. This is what our enemies teach us. Kill them.

. . . .

Fuck what our enemies say. Their opinion should no longer guide us in our direct n out of this white supremacist patriachal hell. I hate them & deep down you do too. 98% of the Blk female populat n think whites aren't worth shit and don't want to be around them less alone think about them. We hate whites more than they hate us. So it is time we used our fear, anger, disgust to destroy them. Blk wm unite. [sic]

B. Standards of Admission

In admitting the notebook entries, the trial court relied on Masters v. People, 58 P.3d 979 (Colo.2002). In that case, the supreme court applied CRE 404(b) standards to determine whether drawings and writings were properly admitted to prove the defendant's motive. Id. at 995-1102.

Although Masters was the trial court's best model at the time, it may have been eclipsed by a more recent decision. In People v. Greenlee, 200 P.3d 363 (Colo.2009), the supreme court ruled that a defendant's statements, uttered two months before he shot a woman, were outside the reach of CRE 404(b) because they were not conduct, did not amount to a crime, and did not reveal prior bad acts. Id. at 368.

The parties have filed supplemental briefs to address whether Greenlee applies here. Naturally, they disagree. Griffin notes that Greenlee does not even mention Masters, let alone purport to overrule it. And she argues that Greenlee is distinguishable because it concerns oral statements instead of writings. The People believe that Greenlee controls; they argue that Griffin's written statements are exempt from CRE 404(b) because words are not conduct.

We conclude that Greenlee does not change the governing analysis. It simply does not matter whether Griffin's writings are subject to CRE 404(b) because the court was required to apply the same standards in any event.2

To demonstrate, let us consider the test that is used to determine admissibility of other act evidence. As explained in People v. Spoto, 795 P.2d 1314 (Colo.1990), this is a four-step inquiry:

1. The court must consider whether the proffered evidence relates to a material fact—one that is of consequence to the determination of the action.

2. If so, the court must decide whether the evidence is logically relevant— whether it tends to make the existence of the material fact more probable or less probable.

3. If so, the court must determine whether the logical relevance is independent of the inference that the defendant committed the crime charged because of the likelihood that he acted in conformity with his bad character.

4. If the proffered evidence survives the first three steps, the court must assess whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

Id. at 1318; see Masters, 58 P.3d at 996; People v. Rath, 44 P.3d 1033, 1038-39 (Colo. 2002).

Assuming that Griffin's writings are exempt from CRE 404(b), one can easily see why three-fourths of the Spoto test nevertheless applies. The first and second steps are based, not on CRE 404(b), but on the relevancy requirements of CRE 401 and 402. Spoto, 795 P.2d at 1318; Rath, 44 P.3d at 1038 n. 3 (materiality is not a separate inquiry but is an inherent part of logical relevance as defined in CRE 401). And the fourth step is based on CRE 403. Spoto, 795 P.2d at 1318; Rath, 44 P.3d at 1038; see also David P. Leonard, New Wigmore on Evidence § 4.6 (2009) ("Because evidence of a person's racist beliefs is likely to incite the jury to make improper character-based conclusions about behavior, the court would need to weigh the probative value of the evidence against the danger of unfair prejudice regardless of whether the evidence fits within the definition of `other crimes, wrongs, or acts.'").

It is harder to see why the third step of Spoto would apply outside the context of CRE 404(b) because that inquiry is closely tied to the language of the rule. See CRE 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."). Nevertheless, assuming that Griffin's writings are exempt from CRE 404(b), we must apply the third step if that analysis is required by other rules of evidence.

And it is. Far from being unique, the exclusionary part of CRE 404(b)...

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