People v. Huynh, No. 01CA2140.
| Decision Date | 11 March 2004 |
| Docket Number | No. 01CA2140. |
| Citation | 98 P.3d 907 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tam HUYNH, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Certiorari Denied October 4, 2004.1
Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
James Grimaldi, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge DAILEY.
Defendant, Tam Huynh, appeals the judgment of conviction entered upon jury verdicts finding him guilty of felony murder, robbery, kidnapping, and unauthorized use of a financial device. We affirm in part and vacate in part.
The bound and gagged body of an Asian-American businessman was found in a duffel bag in his truck. The businessman died of asphyxia brought on by the way his body had been bound and positioned.
Defendant and others were found to be using, and in possession of, the businessman's credit cards. This evidence, plus incriminating statements by defendant and the testimony of an accomplice, linked defendant to various stages in the execution of a plan to rob and kidnap the victim.
At trial, defendant's theory of defense was that he became involved in the venture only after others had committed the robbery, kidnapping, and murder, and only to the extent of attempting to pass as the owner of the victim's credit cards, inasmuch as he too is Asian-American.
The jury found defendant guilty as charged and the trial court entered judgment of convictions on all counts.
Defendant contends that his convictions must be vacated because they were obtained pursuant to an indictment which did not confer jurisdiction upon the court. We disagree.
A grand jury was investigating the death of the victim when defendant was arrested. The prosecution filed in county court a criminal complaint and then an amended criminal complaint charging defendant with the crimes at issue here. Subsequently, and before the date scheduled for defendant's preliminary hearing, however, the grand jury returned an indictment charging defendant with the same crimes.
Defendant requested dismissal of the indictment, arguing that the court had no jurisdiction over the indictment because he had already been charged by way of complaint, and that proceeding under the indictment would obviate the need for, and thus his opportunity to cross-examine witnesses at, a preliminary hearing. In response, the prosecutor sought and was granted leave to dismiss the pending criminal complaint. Therefore, the trial court denied defendant's motion, and no preliminary hearing was held.
A court's jurisdiction over a criminal matter is invoked by the filing of a complaint, an information, or an indictment. Section 16-5-101(1), C.R.S.2003; Crim. P. 5(a)(4)(IV)(V). Our statute and rule neither explicitly allow nor prohibit the filing of an indictment while a previously filed complaint or information is still pending. Section 16-5-101(1); Crim. P. 5(a)(4)(IV)(V). However, the statute and rule permit the filing of a grand jury indictment after a county court has dismissed an information for lack of probable cause at a preliminary hearing, see People v. Noline, 917 P.2d 1256, 1257 (Colo.1996),
and we perceive no reason why a grand jury indictment cannot be substituted for a pending complaint or information.
We reject defendant's assertion that, after the filing of criminal charges, a grand jury's continuing ex parte investigation violates the accused's constitutional rights to the assistance of counsel and cross-examination of witnesses at a preliminary hearing.
The purpose of a preliminary hearing is to determine whether there is probable cause to believe that an offense was committed and that the person charged committed it. See, e.g., People v. Villapando, 984 P.2d 51, 55 (Colo.1999)
; People v. Dist. Court, 803 P.2d 193, 196 (Colo.1990). Because a grand jury makes this same probable cause assessment, a defendant has no right to a preliminary hearing after a grand jury has returned an indictment. People v. Dist. Court, 199 Colo. 398, 401, 610 P.2d 490, 492 (1980)("an indictment is the culmination of the probable cause screening process of the grand jury and that procedure functions as a constitutionally adequate substitute for a preliminary hearing"); see also United States v. Aranda-Hernandez, 95 F.3d 977, 979 (10th Cir.1996)(although defendant was initially detained under information, once indictment returned, there was no need for a preliminary hearing); Jenkins v. State, 305 A.2d 610, 614-15 (Del.1973)(superseding indictment eliminates need for preliminary hearing).
In accord with other jurisdictions, we conclude that there is no impediment to the prosecution proceeding on the basis of an indictment that supersedes earlier filed charges in a case. See, e.g., Jaben v. United States, 381 U.S. 214, 220, 85 S.Ct. 1365, 1369, 14 L.Ed.2d 345 (1965)
("the Government must proceed through the further steps of the complaint procedure by affording the defendant a preliminary hearing as required by Rule 5, unless before the preliminary hearing is held, the grand jury supersedes the complaint procedure by returning an indictment"); State v. Woods, 114 Ariz. 385, 387, 561 P.2d 306, 308 (1977)(even though preliminary hearing had commenced, grand jury indictment superseded complaint and preliminary hearing and gave court jurisdiction over defendant), overruled on other grounds by State v. Avila, 127 Ariz. 21, 24, 617 P.2d 1137, 1140 (1980); Jenkins v. State, supra, 305 A.2d at 614-15 (); State v. Nelson, 131 Idaho 210, 953 P.2d 650, 653-54 (Ct.App.1998) (); State v. Knighten, 260 Kan. 47, 56, 917 P.2d 1324, 1331 (1996)(grand jury indictment supersedes a preliminary hearing if the grand jury finds probable cause before the defendant has had a preliminary hearing).
Defendant's reliance on People v. Williams, 987 P.2d 232 (Colo.1999), for a contrary result is misplaced. In Williams, the supreme court was concerned with the potential for prosecutorial harassment arising from the dismissal and subsequent refiling of cases. People v. Williams, supra, 987 P.2d at 237. Here, the prosecution did not dismiss and at some later date seek to refile the case. Nor did the prosecution attempt to circumvent a timely probable cause determination; the grand jury determined probable cause, and its determination was subjected to further review by the court as provided by § 16-5-204(4)(k), C.R.S.2003.
Next, defendant contends that reversal is required because, through comments made in rebuttal closing argument, the prosecution constructively amended the charges in the case. We disagree.
Two types of variance may arise at trial between the offense in the charging instrument and the offense of which a defendant is convicted. A "constructive amendment" occurs when the evidence at trial changes an element of the charged offense and alters the substance of the charging instrument. A "simple variance" occurs when the charged elements are unchanged, but the evidence at trial proves facts materially different from those alleged. People v. Rodriguez, 914 P.2d 230, 257 (Colo.1996); People v. Carlson, 72 P.3d 411, 415 (Colo.App.2003).
While a constructive amendment to the charges is reversible per se, see People v. Foster, 971 P.2d 1082, 1087 (Colo.App.1998),
a simple variance does not require reversal unless it prejudices the defendant's substantive rights. See People v. Carlson, supra, 72 P.3d at 415 ().
Generally, a variance between the specific date alleged in the charging document and that which is proved at trial is not fatal. See People v. Adler, 629 P.2d 569, 571 (Colo.1981)
; People v. Young, 923 P.2d 145, 148 (Colo.App.1995).
Here, defendant challenges the prosecution's remark that he could be held responsible as a complicitor based, in part, upon an act which occurred some weeks before the date specified in the indictment. Inasmuch as this variance relates only to the possible date or dates of defendant's participation in the crimes, it does not warrant reversal as a constructive amendment to the charges. See People v. Adler, supra; People v. Young, supra.
Nor would it require reversal as a "simple variance." The evidence upon which the prosecution based its remark was known to defendant well in advance of trial. Indeed, the evidence was a portion of a statement defendant had given police, and defendant's failure to object to the prosecution's remark indicates that he was not surprised by it. Inasmuch as defendant has made no showing that the variance here impaired his ability to defend against the charge or to plead the judgment as a bar to a subsequent proceeding, he is not entitled to reversal. See People v. Adler, supra; People v. Young, supra.
Defendant contends that the trial court erred in not suppressing evidence obtained in violation of his constitutional right to be free from unreasonable searches and seizures. We are not persuaded.
Two police officers stopped defendant and another person after recognizing their car from a previously received bulletin that depicted three people and a car connected to the use of the victim's credit cards. Other officers were called to the scene with copies of the bulletin, and the two men and their car were matched up with the photographs in the bulletin. A search of the car uncovered a...
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