People v. Lesslie, 99CA1048.

• Docket Nº: No. 99CA1048.
• Citation: 24 P.3d 22
• Case Date: October 12, 2000
• Court: Court of Appeals of Colorado

24 P.3d 22

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Jim LESSLIE, Defendant-Appellant

No. 99CA1048.

Colorado Court of Appeals, Div. III.

October 12, 2000.

Rehearing Denied December 7, 2000.

Certiorari Denied May 21, 2001.¹

24 P.3d 24

Ken Salazar, Attorney General, Hugo Teufel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Randy C. Canney, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge NEY.

Defendant, Jim Lesslie, appeals the denial of his motion for postconviction relief. We affirm.

As a deputy sheriff of Hinsdale County, defendant cooperated with others to install an electronic listening device in the men's restroom of a bar. The purpose of the device was to intercept conversations related to narcotics transactions, but no court order was obtained authorizing the use of the listening device pursuant to § 16-15-102(1)(a), C.R.S.2000.

The bar owner found and removed the device. After an investigation, defendant, the sheriff, and another deputy were charged with illegal eavesdropping and conspiracy to commit eavesdropping. Defendant was convicted of conspiracy to commit eavesdropping, a class 6 felony. See §§ 18-9-304(1)(a) & 18-9-304(2), C.R.S.2000. The conviction was affirmed on direct appeal. See People v. Lesslie, 939 P.2d 443 (Colo. App.1996).

Defendant subsequently filed a motion to vacate his conviction pursuant to Crim. P. 35(c)(2). He alleged ineffective assistance of trial counsel and that the eavesdropping statute is unconstitutionally vague as applied to the facts of his case. After a hearing, the Crim. P. 35(c) court denied defendant's motion. This appeal followed.

Because defendant's issues on appeal are based on determinations of law, our review is de novo. See St. James v. People, 948 P.2d 1028 (Colo.1997).

I.

Defendant contends that his trial counsel was ineffective because his attorney failed to raise several affirmative defenses. Because we conclude the defenses were not available to defendant, we reject his claim of ineffective assistance of counsel.

24 P.3d 25

A.

Defendant first asserts that his trial counsel was ineffective for failing to raise the defense of execution of a public duty.

Section 18-1-701, C.R.S.2000, provides that "conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by a provision of law...." As relevant to this case, a "provision of law" consists of "[l]aws defining duties and functions of public servants." Section 18-1-701(2)(a), C.R.S.2000.

Defendant argues that the laws that govern his duties as a deputy sheriff, when read in concert, provide that a deputy sheriff must act under the direction of the sheriff and enforce the laws of Colorado. See §§ 30-10-506, & 30-10-516, C.R.S.2000. See also § 18-8-405(1)(a), C.R.S.2000 (it is a crime for a public servant to refrain from performing a duty imposed by law). Defendant contends that because he was ordered by the sheriff to place the listening device, his conduct as a deputy sheriff was required by law and, as such, was excused as the execution of a public duty. We are not persuaded.

Here, defendant did not act to enforce the laws of Colorado, but instead violated the law by conspiring to engage in eavesdropping. Even if he did act under the orders of the sheriff, which proposition, we note, is contradicted by the sheriff's testimony at their joint trial, his conduct could not have been excused as an execution of a public duty pursuant to § 18-1-701, because a sheriff does not have the authority to place electronic listening devices without a court order. See § 16-15-102(1)(a).

Because this affirmative defense was not available to defendant, ineffective assistance cannot be premised on counsel's failure to raise it. See People v. Naranjo, 840 P.2d 319 (Colo.1992) (setting forth the two-part test to analyze claims of ineffective assistance).

B.

Following a similar rationale, we also reject defendant's claim that his trial counsel was ineffective for failing to raise the affirmative defense of mistake of fact or law.

A person is not relieved of criminal liability because he or she engaged in the conduct under a mistaken belief of fact, unless such mistake negates the existence of a particular mental state essential to commission of the offense, or supports a justification defense such as execution of a public duty. Section 18-1-504(1)(a) & (c), C.R.S.2000.

Defendant maintains that he had a good faith belief that there was no reasonable expectation of privacy in the bathroom at the bar. However, such a belief is a mistake of law, not of fact. Likewise, his argument that he reasonably believed that his actions were authorized is also a mistake of law. Therefore, defendant's claims do not support a mistake of fact defense.

A mistake of law defense relates to the mistaken belief that conduct does not, as a matter of law, constitute a criminal offense. Such mistaken belief is not a defense unless the conduct is permitted by administrative regulation, order, or a grant of permission by an official authorized or empowered to make such a grant, or if it is permitted by an official written interpretation of the law relating to the offense. Section 18-1-504(2)(b) & (c), C.R.S.2000.

Here, defendant's contention that the sheriff ordered him to place the electronic listening device, even if proven, could not support a mistake of law defense, because the sheriff was not an official authorized or empowered to permit the interception and recording of communications by such a device. See § 16-15-102(1)(a) (necessitating a court order to authorize the placement of an electronic listening device by the police).

Additionally, defendant's claim that he relied upon People v. Hart, 787 P.2d 186 (Colo. App.1989), for the mistaken belief that his conduct was appropriate, also does not support a mistake of law defense. In People v. Hart, the police intercepted conversations without the aid of an electronic listening device. In contrast, § 16-15-102 unambiguously requires that law enforcement obtain a court order before engaging in electronic eavesdropping.

Again, because the affirmative defense of mistake of fact or law was not available to

24 P.3d 26

defendant, trial counsel's failure to raise the defense cannot support an ineffective assistance claim

II.

Defendant also asserts that his trial counsel was ineffective in failing to object to testimony given by another deputy, relating to an admission defendant made to an attorney during a joint meeting of common interest, because the conversation was protected by attorney-client privilege. Since we conclude that, as a matter of law, the attorney-client privilege was not applicable because the statement was not confidential, we disagree.

The deputy testified at trial that he had supplied the electronic listening device that was...