People v. Reali, 93CA0619

Citation895 P.2d 161
Decision Date20 October 1994
Docket NumberNo. 93CA0619,93CA0619
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jennifer REALI, Defendant-Appellant. . III
CourtCourt of Appeals of Colorado

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Elvin L. Gentry, P.C., Elvin L. Gentry, Marla Prudek-Wyatt, Colorado Springs, for defendant-appellant.

Opinion by Judge CRISWELL.

Defendant, Jennifer Reali, appeals from the judgment of conviction entered on a jury verdict finding her guilty of first degree murder and conspiracy to commit first degree murder. Among other assertions of error, she argues that her convictions were obtained through the improper use of immunized testimony that she gave in another case and of privileged information that the trial court improperly required her counsel to produce. Because we conclude that the matters complained of, even if arguably erroneous, constituted only harmless error, we affirm.

Brian Hood and the defendant had been having a sexual liaison for several months prior to the killing upon which the charges were based. The victim was Brian Hood's wife, who was fatally shot by defendant on September 12, 1990, after leaving a lupus support group meeting.

Within two days after the shooting, defendant gave a detailed confession of the crime to investigating officers. In summary, this statement described how she had become involved with Hood who convinced her, by various religious arguments, to kill his wife. It further described various aborted murder plans and concluded with a description of how she had put on men's clothes and a ski mask, given to her by Hood, and shot the victim.

Presumably because of the existence of this detailed inculpatory statement, defense counsel adopted a strategy designed to persuade the prosecutor not to seek the death penalty while, at the same time, preserving defendant's right to assert all available defenses. In pursuit of this strategy, shortly after the filing of the charges, counsel authorized the defense investigator to provide certain information to the prosecution, and the investigator, with counsel's approval, continued to provide other information throughout the pendency of the charges.

In addition, in late November 1990, the prosecution and the defense entered into an express agreement in which defendant agreed to cooperate in the prosecution of Hood for his part in the killing, including testifying before the grand jury and at his trial pursuant to a grant of use immunity for such testimony. In return, the prosecution agreed not to seek the death penalty in defendant's case and also agreed that, should defendant be convicted and should there be a commutation petition filed with the Governor, the prosecution would favorably comment to the commutation board as to the nature and extent of defendant's cooperation.

Pursuant to this agreement, defendant testified before the grand jury that later indicted Hood, at a hearing upon Hood's request for release upon bond, and at his trial. He was convicted of conspiracy to commit first degree murder and two counts of criminal solicitation. See People v. Hood, 878 P.2d 89 (Colo.App.1994).

The record establishes that the same individuals in the prosecutor's office who were charged with investigating and prosecuting the charges against Hood were also the persons who investigated the charges against defendant and later prosecuted her. Thus, counsel who presented defendant's immunized testimony against Hood in his trial and who were, therefore, fully familiar with that testimony, were the same individuals who later presented the People's case against defendant in her trial.

Defendant's immunized testimony in the Hood proceedings was not materially different from the statements made by her in her earlier detailed confession. However, in her later testimony, she expanded upon some of the subjects addressed in her prior statement and provided further details that had not been disclosed in that statement.

Defendant pleaded not guilty by reason of insanity pursuant to § 16-8-103, C.R.S. (1986 Repl.Vol. 8A), and her sanity trial was held after she testified before the grand jury and in Hood's bond hearing, but before her testimony in Hood's trial. At her sanity trial, a substantial amount of evidence was received relating to the events leading up to the crime and to the crime itself. She was found to be sane.

After her sanity trial, but before Hood's trial, the court before which the charges against Hood were pending, relying upon the decision in State v. Von Bulow, 475 A.2d 995 (R.I.1984), held that the disclosures made through defendant's counsel to the prosecution caused defendant to waive her attorney-client privilege. Counsel was ordered, therefore, to turn over to Hood's counsel his entire file on the case (excluding certain excisions made by the court after an in camera examination). And, because Hood's counsel had access to these materials, Hood's prosecutors, who were also simultaneously prosecuting defendant, were also given access to them.

Later, the trial court here determined that the order of the court requiring a turnover of counsel's files was entered in error. Although the trial court denied defendant's motion to dismiss the charges as a remedy for this improper turnover, it directed that the prosecution was not to make use of any information obtained by it after defendant's sanity trial.

Defendant, in addition to raising the issue of her insanity, also raised the affirmative defense of impaired mental condition pursuant to § 16-8-103.5(1), C.R.S. (1986 Repl.Vol. 8A), and prior to the guilt phase of her trial, she supplied the prosecution with the names of the witnesses she intended to call with respect to this defense and with the other information required to be disclosed by § 16-8-103.5(4), C.R.S. (1994 Cum.Supp.).

I.

Defendant first argues that her confession was inadmissible because she was not given a proper advisement of her rights and because her request for counsel was ignored. We disagree.

First, the trial court determined, as a fact, that defendant's statements to investigators prior to her arrest did not result from a custodial interrogation, and in any event, she had received a proper prior advisement. Such finding has record support and, therefore, will not be disturbed on appeal. See People v. Hamilton, 831 P.2d 1326 (Colo.1992).

Further, after being advised of her rights again and being reminded of that advisement on several occasions, defendant was given a further, full advisement. When defendant asked whether she should have counsel before making a formal statement, she was again told that she had a right to counsel, that if she wanted counsel the interview would cease, and that it would resume again only if counsel approved. She then expressly waived her right to counsel and continued to speak with the officer.

We agree with the trial court that the interrogation here did not violate the mandate set out in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and that defendant's right to counsel was not denied. See Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); People v. Benjamin, 732 P.2d 1167 (Colo.1987).

II.

Defendant next contends that her Fifth Amendment right not to be a witness against herself was violated by the prosecution's improper use during her trial of the immunized testimony that she gave during the course of the Hood proceedings. While we agree that the prosecution's actions in this case, if not clearly erroneous, were undertaken without a full consideration of the manner in which those actions could have an impact upon defendant's rights, we nevertheless conclude that, under the unique circumstances presented here, no prejudicial error occurred.

In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the United States Supreme Court upheld the constitutionality of a statute that authorized the compulsion of testimony under a grant of immunity which provided that neither the testimony compelled, nor any information directly or indirectly derived from such testimony, could be used against the witness. In holding that, under a grant of such use immunity, the compulsory testimony did not violate the witness' Fifth Amendment privilege, the court emphasized that the immunity granted was "co-extensive" with and was as "comprehensive as the protection afforded by" the privilege. Kastigar v. United States, 406 U.S. at 449, 92 S.Ct. at 1659, 32 L.Ed.2d at 219.

The Colorado statute pursuant to which defendant was granted immunity here, § 13-90-118, C.R.S. (1987 Repl.Vol. 6A), contains essentially the same provisions as those considered in Kastigar. See People v. Lederer, 717 P.2d 1017 (Colo.App.1986).

In Kastigar, the supreme court determined that the statute there prohibited "the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insure[d] that the testimony [could] not lead to the infliction of criminal penalties on the witness." Kastigar v. United States, 406 U.S. at 453, 92 S.Ct. at 1661, 32 L.Ed.2d at 222 (original emphasis). It further stated that any statute that does not provide such "a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom," cannot withstand a constitutional challenge. Kastigar v. United States, 406 U.S. at 460, 92 S.Ct. at 1664, 32 L.Ed.2d at 226.

In addition, the Kastigar court concluded that, once a criminal defendant demonstrates that he has been compelled to testify under a grant of use immunity, the prosecution then has "the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly...

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7 cases
  • Com. v. Swinehart
    • United States
    • United States State Supreme Court of Pennsylvania
    • August 29, 1995
    ...provided for use/derivative use immunity through legislation passed after Kastigar. Ark.Code Ann. § 16-43-603 (1994); People v. Reali, 895 P.2d 161 (Colo.Ct.App.1994), interpreting Colo.Rev.Stat.Ann. § 13-90-118; State v. Williams, 536 A.2d 583 (Conn.1988), interpreting Conn.Gen.Stat.Ann. §......
  • People v. Stevenson
    • United States
    • Court of Appeals of Colorado
    • March 19, 2009
    ...amended in 1983 and modeled on the federal statute, provides the same protection. § 13-90-118(1), C.R.S.2008; see People v. Reali, 895 P.2d 161, 165 (Colo.App.1994) (Reali I) (Colorado immunity statute "contains essentially the same provisions as those considered in Kastigar"), denial of po......
  • People v. Stevenson, Court of Appeals No. 06CA1612 (Colo. App. 2/19/2009)
    • United States
    • Court of Appeals of Colorado
    • February 19, 2009
    ...in 1983 and modeled on the federal statute, provides the same protection. § 13-90-118(1), C.R.S. 2008; see People v. Reali, 895 P.2d 161, 165 (Colo. App. 1994) (Reali I) (Colorado immunity statute "contains essentially the same provisions as those considered in Kastigar"), denial of post-co......
  • People v. Quintana
    • United States
    • Court of Appeals of Colorado
    • December 10, 1998
    ...reference to a defendant's silence requires reversal and a new trial. People v. Key, 185 Colo. 72, 522 P.2d 719 (1974); People v. Reali, 895 P.2d 161 (Colo. App.1994). In determining whether a prosecutor's comment on defendant's silence constitutes reversible error, the court should conside......
  • Request a trial to view additional results
1 books & journal articles
  • Witness Immunity Under Colorado Law
    • United States
    • Colorado Bar Association Colorado Lawyer No. 27-12, December 1998
    • Invalid date
    ...32. Id. 33. Kastigar, supra, note 2 at 460-61; People v. Romero, 7745 P.2d 1003, 1013 and n. 4 (Colo. 1987). 34. People v. Reali, 895 P.2d 161, 166 (Colo. App. [relying on People v. Casselman, 583 P.2d 933 (Colo. 1978)]. 35. Lederer, supra, note 16 at 1018-19. 36. Wheeler v. District Court,......

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