People v. Moore

• Citation: 321 P.3d 510
• Decision Date: 03 February 2011
• Docket Number: No. 08CA1805.,08CA1805.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Lessell Henry MOORE, Defendant–Appellant.
• Court: Court of Appeals of Colorado

321 P.3d 510

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Lessell Henry MOORE, Defendant–Appellant.

No. 08CA1805.

Colorado Court of Appeals,
Div. IV.

Dec. 9, 2010.
Rehearing Denied Feb. 3, 2011.

[321 P.3d 512]

John W. Suthers, Attorney General, Katherine A. Aidala, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Samler & Whitson, P.C., Eric A. Samler, Hollis A. Whitson, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge WEBB.

Defendant, Lessell Henry Moore, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder, two counts of first degree burglary, first degree assault, sexual assault, menacing, and violation of a protection order. He was adjudicated as a habitual offender. We vacate his sentence for first degree burglary-assault/menace, and otherwise affirm the judgment and sentences.

I. The Defective Curtis Advisement Was Not Plain Error

Defendant first contends the trial court gave him a defective Curtis advisement, and therefore his waiver of the right to testify was not knowing and voluntary. We conclude that even if the advisement was defective, the error was not plain. Cf. People v. Wylie, 260 P.3d 57, 59–61 (Colo.App.2010) (reviewing predicate statute de novo but applying plain error review to unpreserved sentencing issue).

A split exists among divisions of this court on limiting review of a Curtis issue to post-conviction proceedings. Compare People v. O'Hara, 240 P.3d 283 (Colo.App.2010)( People v. Blehm, 983 P.2d 779, 797 (Colo.1999), holds that an invalid waiver “may be addressed only in post-conviction proceedings”), with People v. Gomez, 211 P.3d 53, 55 (Colo.App.2008) (taking up waiver issue “based on judicial economy”). Here, the Attorney General did not cite Blehm and argued that “a remand is unnecessary because this Court can conclude from the existing record that the trial court's advisement ... did not affect the defendant's decision to waive his right to testify.” For this reason, as well as because Blehm did not cast the procedural issue as jurisdictional and we can resolve waiver without the fact-specific inquiry contemplated in Blehm, we follow Gomez.

People v. Curtis, 681 P.2d 504 (Colo.1984), addressed the advisement that a trial court must give before a criminal defendant decides whether to testify. The trial court need not follow the Curtis language exactly. People v. Chavez, 853 P.2d 1149, 1152 (Colo.1993). But if the court expands on that wording, the additional information must be correct. See People v. Raehal, 971 P.2d 256, 260 (Colo.App.1998). A defendant's waiver of the right to testify based on an incorrect advisement may not be knowing and voluntary. Chavez, 853 P.2d at 1152. The adequacy of a Curtis advisement is a legal question that we review de novo. People v. Harding, 104 P.3d 881, 885 (Colo.2005).

Here, during the Curtis advisement, the trial court told defendant, “[T]he Prosecutor may ask you what [your] prior felony conviction or convictions were for” and “whether

[321 P.3d 513]

the convictions were by a guilty plea, or whether you actually went to trial, and were found guilty at the trial.” Defense counsel did not object to the advisement, and defendant chose not to testify.

Nevertheless, defendant now asserts that under Gomez, decided after his trial, the advisement was defective as a matter of law. Gomez held that “in cross-examining a defendant, the prosecutor may not ask whether a prior felony conviction arose from a plea or a trial,” and that a Curtis advisement to the contrary is erroneous. 211 P.3d at 57.

The Attorney General responds that Gomez was wrongly decided and we should not follow it, but cites no more recent contrary authority. One division of this court is not bound by the decision of another division. See People v. Thomas, 195 P.3d 1162, 1164 (Colo.App.2008). However, because we conclude that the error, if any, was not plain, we need not accept the invitation to revisit Gomez.

The Attorney General next asserts that even if the advisement was erroneous, defendant's failure to object requires us to apply the plain error standard in deciding whether this error entitles him to relief. We agree. See, e.g., People v. Cook, 197 P.3d 269, 275 (Colo.App.2008) (lack of contemporaneous objection triggers plain error review).

Reversal for plain error is a “drastic remedy.” Domingo–Gomez v. People, 125 P.3d 1043, 1055 (Colo.2005). Even where a reviewing court detects error, two questions must be answered in the affirmative before it grants relief: whether the error was “plain,” “clear,” or “obvious”; and, if so, whether it “undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction.” People v. Miller, 113 P.3d 743, 750 (Colo.2005) (internal quotation marks and citations omitted).

Both questions recognize the import of the contemporaneous objection rule “to conserve judicial resources by alerting the trial court to a particular issue in order to give the court an opportunity to correct any error.” People v. Pahl, 169 P.3d 169, 183 (Colo.App.2006). Requiring such an objection before considering error on appeal ensures that defendants do not end up “gambling for favorable verdicts and then resorting to appeal on errors that might have easily been corrected by objection at trial.” People v. Petschow, 119 P.3d 495, 505 (Colo.App.2004) (quotation marks and citation omitted). Hence, “[p]lain error is error that is so clear-cut, so obvious, that a competent trial judge should be able to avoid it without benefit of objection.” People v. Beilke, 232 P.3d 146, 152 (Colo.App.2009).

Here, defendant asserts that whether the Curtis error was plain or obvious should be measured by Gomez. However, his reliance on People v. Versteeg, 165 P.3d 760, 767 (Colo.App.2006), quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), for the proposition that, “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration,” is misplaced. In contrast, Gomez makes clear that Colorado law was unsettled as to a prosecutor's ability to cross-examine a defendant on whether a prior felony conviction was the result of a plea or a trial. 211 P.3d at 56. In his reply brief, defendant agrees. This issue does not involve an overarching constitutional principle whose application in Colorado was predetermined by federal precedent.

If the law is unsettled at the time of trial, “plain error analysis will be conducted using the status of the law at the time of trial.” People v. O'Connell, 134 P.3d 460, 464–65 (Colo.App.2005). Thus, “[w]hen the state of the law is unclear at trial and only becomes clear as a result of later authority, the district court's error is perforce not plain.” United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997). This result reflects the particular value of a contemporaneous objection to assist the trial court in dealing with unsettled law. Id.

Therefore, because the law was unsettled at the time of defendant's trial, we conclude that the unpreserved error in the Curtis advisement, if any, was not plain or obvious.

[321 P.3d 514]

Cf. People v. Valencia, 169 P.3d 212, 221 (Colo.App.2007) (error not obvious absent “case interpreting, or providing an analytical model how to apply” statutory language), abrogated in part on other grounds by Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

Having so concluded, we do not reach the second question whether the alleged error casts serious doubt on the reliability of the judgment of conviction. See People v. Griffin, 224 P.3d 292, 299 (Colo.App.2009) (citing with approval State v. Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240, 1248 (2002) (if alleged error is not plain, appellate court need not consider whether it affected defendant's substantial rights)); see also United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (addressing whether error is plain before determining its effect on defendant's rights).

Accordingly, the Curtis advisement does not entitle defendant to any relief.

II. The Trial Court Did Not Abuse Its Discretion in Declining to Excuse a Juror

Defendant next contends the trial court erred by denying his motion to excuse juror S, because during trial she had been exposed to a newspaper article containing prejudicial information about him. We discern no abuse of discretion.

Defendant first argues that juror S violated the court's sequestration order, which requires automatic reversal. Even assuming that she did, defendant cites no case, nor have we found one in Colorado, holding that reversal would be automatic. Cf. People v. Sherman, 45 P.3d 774, 780 (Colo.App.2001) (although defendant argued for new trial because of violation of a sequestration order, court held that to warrant reversal, defendant must show that juror heard or saw extraneous information and that the information was prejudicial).

Defendant next argues that the trial court abused its discretion by denying his motion to excuse juror S because of prejudicial information in the article. We disagree.

A trial court should deal with juror exposure to prejudicial publicity during trial as follows:

1) the trial court must determine whether the publicity is inherently prejudicial;

2) if so, the court should canvass the jury to determine whether the jury learned of the prejudicial publicity; and

3) the trial court should individually examine exposed jurors to determine how much they know of the publicity and what effect, if any, the publicity will have on their deliberations.

Dunlap v. People, 173 P.3d 1054, 1091 (Colo.2007). Defendant's reliance on People v. Harlan, 109 P.3d 616 (Colo.2005); People v. Wadle, 97 P.3d 932 (Colo.2004); and Wiser v. People, 732 P.2d 1139 (Colo.1987), is...