People v. McGlotten

• Citation: 166 P.3d 182
• Decision Date: 03 May 2007
• Docket Number: No. 02CA1014.,02CA1014.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hassan McGLOTTEN, Defendant-Appellant.
• Court: Court of Appeals of Colorado

166 P.3d 182

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hassan McGLOTTEN, Defendant-Appellant.

No. 02CA1014.

Colorado Court of Appeals, Div. III.

May 3, 2007.

Rehearing Denied June 28, 2007.

John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RUSSEL.

Defendant, Hassan McGlotten, appeals from the trial court's judgment of conviction in a criminal case. We reverse and remand for a new trial.

In 2000, McGlotten was indicted for a variety of criminal acts, including gang-related shootings, a kidnapping, and drug distribution. The indictment included a charge of racketeering activity under the Colorado Organized Crime Control Act (COCCA), § 18-17-101, et seq., C.R.S.2006.

In 2002, a jury convicted McGlotten of the COCCA violation, two counts of conspiracy to commit first degree murder, attempted manslaughter, prohibited use of weapons, false imprisonment, felony menacing, conspiracy to distribute a controlled substance, and first degree criminal trespass. The trial court sentenced him to thirty-nine years in prison.

I. Appellate Delay

McGlotten contends that his convictions should be reversed because he was deprived of his due process right to a meaningful and speedy appeal. We agree.

A. Introduction

In recent months, we have considered several cases in which defendants have argued that they were deprived of the due process right to a meaningful and speedy appeal. See, e.g., People v. Whittiker, ___ P.3d ___. 2006 WL 3437556 (Colo.App. No. 01 CA2340, Nov. 30, 2006); People v. Carmichael, ___ P.3d ___, 2007 WL 1299166 (Colo.App. No. 02CA0719, Feb. 8, 2007). In each of these cases, the appeal was delayed by a court reporter's failure to produce timely transcripts.

In People v. Whittiker, supra, we evaluated the defendant's claim of appellate delay under a four-factor test that is derived from the constitutional speedy trial test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We considered the following factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) any prejudice to the defendant resulting from the delay. We concluded that, although the first three factors weighed in the defendant's favor, the claim failed for lack of prejudice. People v. Whittiker, supra.

In People v. Carmichael, supra, we employed the same test and reached the same conclusion: although the first three factors weighed in the defendant's favor, the claim failed because the defendant was unable to show that he had been prejudiced.

Both of these cases reflect the following views about prejudice in appellate delay cases:

1. Prejudice is an essential element. Even if the other factors weigh in the defendant's favor, no relief will be granted unless the defendant can demonstrate prejudice. People v. Whittiker, supra, ___ P.3d at ___; see United States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir.1995); Harris v. Champion, 15 F.3d 1538, 1559 (10th Cir.1994).

2. The prejudice inquiry depends on the procedural context of the defendant's claim. If the claim is presented in an attempt to gain temporary release pending appeal, several factors are examined. But when the defendant asserts appellate delay on direct appeal, along with other contentions of trial error, the crucial inquiry is whether the delay has impaired the defendant's ability to prosecute the appeal. People v. Whittiker, supra, ___ P.3d at ___; see Harris v. Champion, supra, 15 F.3d at 1566; see also Simmons v. Beyer, 44 F.3d 1160, 1170 n. 7 (3d Cir.1995) (collecting cases).

The Whittiker and Carmichael decisions thus raise an interesting question: In light of the durable nature of legal argument, how could appellate delay ever impair a defendant's ability to prosecute the appeal? We conclude that McGlotten's case provides an illustrative answer.

B. Analysis

We evaluate McGlotten's case under the same four-factor test that we applied in Whittiker and Carmichael.

1. Length of Delay

A defendant must make a threshold showing of inordinate delay to trigger inquiry into the remaining factors. People v. Whittiker, supra, ___ P.3d at ___. McGlotten filed a notice of appeal in May 2002. The five-year delay is clearly excessive and inordinate. See United States v. Smith, 94 F.3d 204, 209 (6th Cir.1996) (three-year delay is sufficient to trigger further inquiry); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990) (six-year delay is excessive); United States v. Johnson, 732 F.2d 379, 382 (4th Cir.1984) (two-year delay "is in the range of magnitude" for triggering further inquiry).

2. Reason for Delay

Because the delay is inordinate, we must inquire into the reason for the delay. The trial court determined that the delay resulted from the "illness of the assigned court reporter [and] the difficulty contract court reporters . . . experienced in transcribing the notes." Because delays in the preparation of transcripts are generally attributable to the government, this factor weighs in McGlotten's favor. See People v. Whittiker, supra, ___ P.3d at ___.

3. Assertion of the Right

Although an accused person may wish to avoid trial altogether, a convicted defendant rarely has an interest in delaying the appeal. It is therefore generally appropriate to view the defendant's filing of a notice of appeal as an assertion of the right to a speedy appeal. Thus, this third factor will generally weigh in the defendant's favor unless the state shows that the defendant affirmatively sought or caused delay. See People v. Whittiker, supra, ___ P.3d at ___. Here, McGlotten filed a timely notice of appeal and actively sought relief on the grounds of delay. This factor weighs in his favor.

4. Prejudice

Because McGlotten has presented a claim of appellate delay on direct appeal, along with other contentions of trial error, we will grant relief only if he can show that the delay has impaired his ability to present his arguments on appeal. We conclude that McGlotten has made this showing. McGlotten has demonstrated that, as a result of appellate delay, he cannot present a potentially meritorious substantive contention.

a. McGlotten's Substantive Contention

During its deliberations, the jury submitted a three-part question to the trial court:

1. Can we get an overhead projector to put up all counts as we make a decision[?]

2. Is it possible to apply a lesser charge to a count that doesn't already list a lesser charge? For example: Count 11 criminal attempt to commit manslaughter?

3. We are ready to listen to interview and transcript of interview.

The trial court made the following record concerning its response to the jury's question:

We are back on the record in the presence of the jury without the parties present. The jury submitted a series of questions which I marked as Court's Exhibit C and we got an overhead projector — we got an overhead projector delivered to your jury room upon your communications here so you can use an overhead projector; and there is a second question with regard to charges and I've done a written answer there that you can review when you get back to the jury room; and, third, we are ready to listen to the interview and the transcript of the interview.

On the basis of this exchange, McGlotten contends that the trial court committed constitutional error by failing to consult with defense counsel before answering the second part of the jury's question. See Leonardo v. People, 728 P.2d 1252, 1257 (Colo.1986) (it is constitutional error for a trial court to respond to a jury question without first making reasonable efforts to obtain the presence of defense counsel).

b. Review Is Impossible

In August 2006, after considering the parties' written and oral arguments, we concluded that we were unable to resolve McGlotten's substantive contention on the existing record. We therefore remanded the case for reconstruction of the record. See People v. Ellis, 148 P.3d 205, 208 (Colo.App.2006) (the appropriate remedy for prejudice resulting from an incomplete trial record is to remand the case to the trial court for a hearing to reconstruct the record); People v. Rodriguez, 43 P.3d 641, 643 (Colo.App.2001) (same). We ordered the trial court to settle these factual issues:

1. Did the trial court consult, or attempt to consult, with defense counsel before it answered the jury's question?

2. What answer did the court provide in response to the jury's question?

In October 2006, the trial court held a hearing on these factual issues. The court heard the testimony of McGlotten's trial attorney, two jurors, various investigators, and a psychologist who is an expert on memory and suggestivity. Over McGlotten's objection the court also accepted the affidavits of the trial prosecutors and former trial judge. Despite our directions to settle the record, the trial court did not resolve either of the factual questions presented. Instead, the court filed a report that summarized the evidence received on each question.

After reviewing the court's report and the evidence presented on remand, we again conclude that we cannot reliably evaluate McGlotten's substantive contention. Our conclusion is supported by three observations.

First, we cannot determine whether the trial court committed constitutional error. The trial transcript suggests, but does not conclusively establish, that the court answered the jury's question without consulting with defense counsel. The issue was not settled on remand: the trial court did not make findings, and the evidence was conflicting and inconclusive.

Second, we cannot determine whether the error, if it occurred, was harmless beyond a reasonable doubt. See Leonardo v. People, supra, 728 P.2d at 1257 (cou...