People v. Hagos, 05CA2296.

• Decision Date: 18 February 2010
• Docket Number: No. 05CA2296.,05CA2296.
• Citation: 250 P.3d 596
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Abraham HAGOS, Defendant–Appellant.
• Court: Colorado Court of Appeals

250 P.3d 596

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

v.Abraham HAGOS, Defendant–Appellant.

No. 05CA2296.

Colorado Court of Appeals, Div. II.

Oct. 29, 2009.As Modified on Denial of Rehearing Feb. 18, 2010.

John W. Suthers, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado, for Defendant–Appellant.Opinion by Judge CASEBOLT.

Defendant, Abraham Hagos, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree murder, attempted first degree murder, conspiracy to commit first degree murder, and two counts of witness retaliation. We remand for further proceedings.

Defendant and the victim were involved together in the sale and distribution of drugs. During execution of a search warrant for the victim's residence in Jefferson County, police seized a safe containing over $7,000 in cash, quantities of cocaine and methamphetamine, and a gun. The victim subsequently cooperated with police and implicated defendant. His cooperation extended to giving preliminary hearing testimony in a drug case against defendant initiated in Jefferson County.

Defendant determined to have the victim killed and sought assistance to do so from numerous persons, including Matthew Conner, a friend of the victim, and members of an ethnic Cambodian gang. Defendant offered to pay $10,000 for the killing. One gang member, Kosal So, took the money and agreed to kill the victim. Following additional discussions, defendant agreed to pay So another $10,000 and provided a gun that So and another gang member, Samnang Prim, could use to commit the crime. So also solicited the assistance of a person called Ley.

The day before a motions hearing in the Jefferson County drug case, So took Prim and Ley to a location near the victim's residence. The victim, who had been invited by Conner to go out with him that evening to facilitate the opportunity for the killing, observed the men at a bus stop, and after the victim climbed into Conner's car, shots were fired at the victim and the victim returned fire. No one was hit. Police responded to the incident and obtained a statement from the victim as part of their investigation.

The next day, the victim went to court for the motions hearing and, while waiting in a room near the courtroom, he observed defendant come to the window of the waiting room and make a gesture to the victim pretending to shoot a gun to the head. He reported the gesture to the prosecutor.

Two days later, So picked up Prim and drove him to the victim's workplace. Prim ran to where the victim was preparing to park his car and fired multiple shots into the car, killing the victim. After confirming the victim's death, defendant paid So the remaining $10,000, $5,000 of which So paid to Prim.

Conner confessed to his role in the two shootings, pleaded guilty to attempted first degree murder, and agreed to testify against defendant. Police arrested So, who admitted his own involvement, pleaded guilty to second degree murder, and agreed to testify against defendant. Likewise, Prim admitted his involvement, but asserted his Fifth Amendment rights when he was ultimately called to testify in the trial against defendant.

Defendant was charged in Denver in connection with the shootings and the prosecution filed notice that it would seek the death penalty. The trial court appointed the Office of the State Public Defender (PD), including attorney F., to represent defendant. During pretrial proceedings, attorney F. became aware that the prosecution had a witness, R.N., who proposed to testify that defendant had admitted his role in the killing during a jailhouse conversation. Attorney F. interviewed R.N.'s wife, P.N., several times while she was also incarcerated, attempting to determine if she might be able to impeach R.N. On one occasion, just before attorney F. interviewed her without an investigator present, P.N. had momentary contact with defendant, who had emerged from an attorney-client conference with attorney F. at the jail. Shortly after that meeting, P.N. told prosecutors that attorney F. had threatened her during the interview. The next day, the prosecution moved to disqualify attorney F. and the PD from the case.

Attorney F. adamantly denied making any such statements. During one of the multiple hearings on the disqualification motion, P.N. reported seeing defendant threaten her while she was testifying by silently mouthing to her from the defense table, “You're dead”; however, no one else observed it. Nevertheless, following investigation of the supposed threat, the PD moved to disqualify the trial judge, contending among other things that he would be a witness in the matter.

The trial court denied the motion to disqualify. It also determined that attorney F. had created a conflict of interest by interviewing P.N. alone, making himself a witness in the case. Although defendant wanted attorney F. to remain as his attorney, he rejected the trial court's proffered solution to commit not to call P.N. as a witness as a condition of keeping attorney F. and the PD. Accordingly, the trial court disqualified attorney F. and the PD office and appointed Alternate Defense Counsel (ADC) to represent defendant.

One of the ADC attorneys disclosed to the court that he had formerly represented one of the prosecutors and members of his family, as well as one of the case investigators, all in civil matters. He represented that he had explained this to defendant and that defendant was willing to waive any potential conflict. Defendant then entered a plea of not guilty.

Approximately seven months later (three months before trial), the ADC attorneys moved to withdraw from the case, asserting a conflict of interest. They requested and were granted an ex parte hearing in front of a different judge and without prosecutors being present. However, the attorneys declined specifically to identify any reason for their conflict of interest claim, and the independent judge denied the motion. Defendant indicated he wanted the ADC attorneys to remain on his case.

After the court determined to admit some evidence from the Jefferson County drug case, defendant filed a motion to suppress, challenging the validity of the search warrant issued for the search of the victim's residence. The trial court denied the motion.

Before trial, the prosecution moved to admit particular hearsay and non-hearsay statements. The court concluded that the victim's preliminary hearing testimony from the Jefferson County drug case would be admissible as non-hearsay, and that some of Prim's out-of-court statements might be admissible if a proper foundation were laid. The court also indicated that the victim's statements concerning the bus stop shooting and the threatening gesture defendant purportedly made at the Jefferson County courthouse would be admissible.

The jury convicted defendant after trial. Following defendant's conviction and before any sentencing proceeding, the Supreme Court announced its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), holding that an Arizona statute allowing for a judge, rather than a jury, to find aggravating factors necessary to impose the death penalty, violated the Sixth Amendment. The trial court concluded, based on Ring, that the prosecution could not seek the death penalty here, and the supreme court affirmed that determination. People v. Hagos, 110 P.3d 1290 (Colo.2005).

Following trial, defendant filed a pro se motion to dismiss counsel based upon the ADC attorneys' prior representation of members of the prosecution's team. The court denied that motion, but later permitted those ADC attorneys to withdraw for other reasons.

Defendant filed a motion requesting the return of $2,705 taken from him when he was arrested in a different case. In addition to imposing a life sentence without possibility of parole, the court ordered restitution in the amount of $2,223.05, payable to the Victim's Compensation Board, and ordered that amount to be taken from the money seized from defendant and held by the police department. This appeal followed.

I. Heightened Due Process Concerns

Citing Dunlap v. People, 173 P.3d 1054 (Colo.2007), and People v. Harlan, 8 P.3d 448, 461 (Colo.2000) ( Harlan I ), defendant contends that heightened due process considerations apply to this case because the death penalty was potentially available. However, the state no longer has the ability to impose the death penalty on defendant. Hagos, 110 P.3d at 1290.

Defendant nevertheless cites People v. Reynolds, 159 P.3d 684, 688 (Colo.App.2006), for the proposition that “case law has defined ‘capital case’ to mean a case in which a sentence of death is potentially available under the statutes applicable to the offense, regardless of the constitutional availability of the death penalty.” Regardless of Reynolds's applicability here, defendant has not identified any heightened considerations that should apply or specifically how we should treat this case differently from any other. Consequently, we reject the contention.

II. Disqualification of Counsel

Defendant contends that the trial court abused its discretion by disqualifying the PD from representing him. Because we conclude the trial court's finding that attorney F. was likely to be called as a necessary defense witness was within its discretion, we disagree.

A. Relevant Facts

The trial court found that the PD was requesting that P.N. appear as a witness to discredit the proposed testimony of her husband, R.N. It also concluded that the encounter between defendant and P.N. at the jail, as well as attorney F.'s assertedly intimidating statements, could suggest a possible motivation for P.N. to testify at trial in a particular way. Consequently, the trial court found that if the prosecution called R.N., and defendant...