People v. Mitchell

• Docket Number: Court of Appeals No. 21CA1676
• Decision Date: 23 May 2024
• Citation: People v. Mitchell, 2024 COA 7, 547 P.3d 412 (Colo. App. 2024)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Demarea Deshawn MITCHELL, Defendant-Appellant.
• Court: Colorado Court of Appeals

547 P.3d 412

2024 COA 7M

2024 COA 7M

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

v.Demarea Deshawn MITCHELL, Defendant-Appellant.

Court of Appeals No. 21CA1676

Colorado Court of Appeals, Div. V.

Announced January 18, 2024

As Modified May 23, 2024

Arapahoe County District Court No. 19CR1443, Honorable Ben L. Leutwyler III, Judge

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE YUN

¶ 1 Demarea Deshawn Mitchell and three codefendants, all juveniles, conspired to rob the victim at gunpoint. During the attempted robbery, the victim was shot and killed. The People initially charged the four youths with felony murder based on their participation in the attempted robbery, prosecuting all four as adults. But after two of the codefendants, neither of whom is Black, agreed to cooperate with law enforcement, the People refiled their cases into juvenile court.

¶ 2 Mitchell, who is Black, argues that, by continuing to prosecute him as an adult while treating the two non-Black codefendants as juveniles, the People engaged in selective prosecution based on race. He argues that the four codefendants were similarly situated at the outset of the case because the People filed the same charges against all of them. But, informed by how federal courts have addressed selective prosecution claims, we conclude that sharing a charge does not, by itself, make codefendants similarly situated for purposes of a selective prosecution claim. Rather, the People may make different prosecutorial decisions with respect to codefendants who share a charge based on their different conduct.

¶ 3 We further conclude that the district court did not err by denying Mitchell’s motion for a reverse transfer to juvenile court or by excluding certain evidence. We therefore affirm the judgment of conviction entered on jury verdicts finding Mitchell guilty of first degree felony murder, attempted ag- gravated robbery, and conspiracy to commit aggravated robbery.

I. Background

¶ 4 The following evidence was presented at trial. In the spring of 2019, when high school students K.G. and J.S. were dating, K.G. came up with the idea of robbing the victim, another student, for vaping products. The victim was best friends with J.S.’s exboyfriend, and KG. did not like him for that reason. J.S. agreed to the plan and arranged to meet up with the victim, ostensibly to buy the vaping products from him.

¶ 5 On May 8, 2019, K.G. called his friend D.S., told him about the planned robbery, and asked to borrow a stolen gun D.S. had in his possession. D.S. agreed to the plan, and when K.G. picked him up in J.S.’s car, D.S. brought the loaded gun. The two then called Mitchell and asked "if he wanted to hang out for a little." Mitchell agreed to hang out, and they picked him up as well. KG. told Mitchell about the plan to rob the victim, and Mitchell agreed to the plan.

¶ 6 K.G., D.S., and Mitchell discussed how they would conduct the robbery. They decided that, when they met up with the victim as J.S. had arranged, "they were going to roll down the window [of the car] and just drive away with [the vaping products]; but if that didn’t, like, work, then they had the gun to, like, pop out."

¶ 7 K.G., D.S., and Mitchell picked up J.S. from work that evening, and the four of them drove to the victim’s house. KG. was driving, J.S. was in the front passenger seat, and D.S. and Mitchell were in the back with the gun either on the seat between them or on the floor. When they arrived at the victim’s house, the four again discussed the planned robbery and agreed that, if they "couldn’t just take the stuff and drive off," then "somebody was going to get out the gun and scare" the victim.

¶ 8 J.S. texted the victim that she was there. The victim came outside, walked up to the car, spoke to J.S. through the window, and asked to see, the money before showing her the vaping products. Mitchell picked up the gun, and he and K.G. got out of the car. Mitchell walked up to the victim, "grabbed him[,] and put, the gun to him." The victim resisted and wrestled Mitchell to the ground. K.G. ran toward them. Then, as they struggled, Mitchell shot the victim in the chest.

¶ 9 The victim screamed and ran back into his house. K.G. and Mitchell got back into the car, and the four of them drove away. KG. asked Mitchell where he shot the victim, and Mitchell replied, "I don’t know, somewhere in the stomach." They talked about what to do with the gun, and Mitchell offered to dispose of it. The next day, Mitchell attempted to sell it to another person.

¶ 10 In the hospital before he died, the victim told a police officer that "Kenny" (that is, K.G.) shot him.

II. Procedural History

¶ 11 Although K.G., J.S., D.S., and Mitchell were all juveniles at the time of the shooting, the People charged all four as adults with first degree felony murder, attempted aggravated robbery, and conspiracy to commit , aggravated robbery. But several months later, the People refiled J.S.’s and D.S.’s cases into juvenile court, where — in exchange for "full proffers in cooperation with law enforcement" — J.S. and D.S. each pleaded guilty to one count of aggravated robbery and were subsequently sentenced to two years in the custody of the Division of Youth Services (DYS). Nothing in the record indicates that a similar plea offer was extended to K.G. or Mitchell.

¶ 12 J.S. is Hispanic, D.S. is white, and K.G. and Mitchell are both Black.

¶ 13 Mitchell moved to "reverse transfer" his case to juvenile court under section 19-2.5-801(4), C.R.S. 2023. After a hearing, the district court denied the motion.

¶ 14 Mitchell then filed a motion to dismiss for selective prosecution and a request for discovery, arguing that the disparate treatment between himself and the two non-Black defendants, J.S, and D.S., rose "to the level of a selective prosecution based on race," He argued that "Black people are disproportionately represented and experience disparate treatment" in the American criminal justice system generally and the Eighteenth Judicial District of Colorado specifically, and that the People’s decision to prosecute him as an adult while refiling J.S.’s and D.S.’s cases into juvenile court exemplified this unequal treatment. He noted, however, that no state agency currently publishes the statistical information he would need to determine whether Black youths are disproportionately "direct filed" — that is, prosecuted as adults — in the Eighteenth Judicial District. Accordingly, he asked the court to order discovery of (1) all emails regarding plea negotiations between the prosecution and the lawyers for J.S. and D.S.; (2) any statistical data regarding charging decisions for direct-file-eligible juveniles; (3) any notes from meetings or staffing decisions in direct-file-eligible cases, including his own; (4) a list of all cases in which juveniles were direct file eligible and the race of those juveniles; and (5) the outcome of each case in which juveniles were direct file eligible.

¶ 15 The court denied the motion. Mitchell proceeded to trial, and the jury found him guilty as charged. The court imposed the mandatory sentence for felony murder of life in the custody of the Department of Corrections (DOC) with the possibility of parole after forty years.

¶ 16 Mitchell now appeals.

III. Analysis

¶ 17 Mitchell contends that the district court erred by (1) denying his motion to dismiss for selective prosecution and request for discovery; (2) denying his motion for a reverse transfer to juvenile court; and (3) excluding certain evidence at trial. We address each contention in turn.

A. Selective Prosecution

¶ 18 Mitchell contends that the district court erred by finding that he failed to make the threshold showing of selective prosecution necessary to obtain discovery. We disagree.

1. Standard of Review and Governing Law

[1, 2] ¶ 19 We review the district court’s denial of discovery on a selective prosecution claim for an abuse of discretion. See People v. Butler, 224 P.3d 380, 384 (Colo. App. 2009). A court abuses its discretion "if it misconstrues or misapplies the law or otherwise reaches a manifestly arbitrary, unreasonable, or unfair result." People v. Johnson, 2019 COA 159, ¶ 10, 487 P.3d 1166, aff'd, 2021 CO 35, 486 P.3d 1154.

[3, 4] ¶ 20 The decision to prosecute is within the exclusive province of the district attorney. Colo. Const. art. VI, § 13. A prosecutor has "wide discretion in determining who to prosecute for criminal activity and on what charge." Butler, 224 P.3d at 383 (quoting People v. Kurz, 847 P.2d 194, 196 (Colo. App. 1992)). But a prosecutor’s discretion to bring charges is constrained by the Equal Protection Clause of the Fourteenth Amendment. United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); People v. Gallegos, 226 P.3d 1112, 1118 (Colo. App. 2009). "Equal protection of the laws guarantees that persons who are similarly situated will receive like treatment by the law." Harris v. Ark, 810 P.2d 226, 229 (Colo. 1991).

[5–8] ¶ 21 "Selective prosecution is a claim that the prosecutor has brought a criminal charge for a forbidden reason, such as race or religion, that violates equal protection." Butler, 224 P.3d at 384 n.1. The defendant has the burden of establishing that "the selective prosecution had a discriminatory effect and was motivated by a discriminatory purpose." Kurz, 847 P.2d at 197. To obtain discovery on a selective prosecution claim, the defendant must provide some credible evidence tending to show the existence of both discriminatory effect and discriminatory intent. People v. Valencia-Alvarez, 101 P.3d 1112, 1116 (Colo. App. 2004); see also Butler, 224 P.3d at 384. "The some credible evidence standard for obtaining discovery on a claim of selective … prosecution is ‘rigorous.’ " Butler...