People v. Reynolds, No. 04CA1053.

Docket NºNo. 04CA1053.
Citation159 P.3d 684
Case DateSeptember 07, 2006
CourtCourt of Appeals of Colorado
159 P.3d 684
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Daloyd T. REYNOLDS, Defendant-Appellant.
No. 04CA1053.
Colorado Court of Appeals, Div. I.
September 7, 2006.

[159 P.3d 685]

John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Lisa A. Polansky, Boulder, Colorado, for Defendant-Appellant.

Opinion by Judge VOGT.


Defendant, Daloyd T. Reynolds, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree burglary, second degree kidnapping, false imprisonment, aggravated robbery with an armed confederate, conspiracy to commit first degree burglary, and conspiracy to commit aggravated robbery. We reverse and remand for a new trial.

Four armed men entered a home, forced the occupants to the basement, bound some of them with duct tape, struck one woman with a hammer, and took her money. The woman later identified defendant as one of her attackers.

Over defendant's objection, his case was consolidated with that of two of the other men involved in the incident. At the conclusion of the prosecution's case, the trial court granted defendant's motion for a judgment of acquittal on the first degree kidnapping charges, but, over defense objection, ruled that the jury would be instructed on second degree kidnapping. The court also granted a severance and a mistrial as to one of the codefendants, but ordered that the trial would proceed against the two remaining defendants.

Defendant subsequently testified that he had given money and duct tape to another man so that the man could purchase and package marijuana at the house. He denied entering the house himself or knowing anything about the events taking place inside.

159 P.3d 686
I.

Defendant contends the charges against him should have been dismissed because he was not brought to trial within the statutory speedy trial period and did not waive this statutory right. We disagree.

Colorado's speedy trial statute requires the dismissal of criminal charges if the defendant is not brought to trial within six months of the date a not guilty plea is entered, unless the delay falls into one of the exclusion categories set forth by statute. People v. Arledge, 938 P.2d 160 (Colo.1997); see § 18-1-405(1), C.R.S.2005.

One such exclusion is set forth in § 18-1-405(6)(c), C.R.S.2005, which states:

In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this section, the following periods of time shall be excluded:

...

(c) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance.

See People v. Backus, 952 P.2d 846 (Colo. App.1998) (under § 18-1-405(6)(c), where codefendant's motion for continuance resulted in trial setting beyond expiration of defendant's original speedy trial period and trial court found good cause for not granting severance, there was no violation of defendant's speedy trial rights).

Defendant was arraigned on August 15, 2003. In an order entered October 1, 2003, the trial court granted the prosecution's motion to consolidate the cases against three of the men involved in the incident that gave rise to the charges. The court found that the cases were "joinable under Crim. P. 8" because they arose out of a single criminal episode in which all the defendants allegedly participated; that severance was not mandatory because the prosecution had agreed not to introduce statements made by two of the defendants in the joint trial; and that, upon consideration of the factors set forth in Peltz v. People, 728 P.2d 1271 (Colo.1986), there was no basis for granting discretionary severance. In regard to the Peltz factors, the court found that neither the number of defendants nor the complexity of the issues was apt to confuse the jury; that any "marginal prejudice" from the admission of evidence could be cured by admonitory instructions; and that defendant had not identified any specific antagonistic defenses.

Following the consolidation, at a hearing on October 24, 2003, counsel for one of the codefendants stated that he had filed a motion for a continuance of the trial date. The court attempted to reset the trial before defendant's speedy trial period ran on February 16, 2004. During the ensuing discussion, the court noted that it could not set the trial during the court's "term week" in early January. Because no other date before February 16 was acceptable to the codefendants' counsel, trial was set to begin March 1, 2004.

Defendant's retained counsel had withdrawn at the time of the October 24, 2003, hearing, and defendant appeared at that hearing without an attorney. He subsequently obtained new counsel, who, on February 12, 2004, filed an objection to the March 1 trial date and demanded that defendant be brought to trial on or before February 16, 2004.

The trial court denied the motion after hearing argument and reviewing the transcript of the October 24 hearing. It concluded that the judge who had presided at the October 24 hearing had implicitly determined that good cause existed for not granting the severance. The court added that it also "specifically finds that it would appear, based on [the first judge's] previous findings, that there was a good cause for not granting the severance, that the delay was reasonable, and that the delay is encompassed and envisioned by [§ 18-1-405(6)(c)]." It therefore denied defendant's motion to dismiss.

We find no error in the court's ruling. The two-week period of delay was unquestionably reasonable, and defendant does not dispute that his case was "joined for trial with a codefendant as to whom the time for trial [had] not run." Section 18-1-405(6)(c). Although defendant argues that the third requirement of § 18-1-405(6)(c) — namely, a finding that "there is good cause for not

159 P.3d 687

granting a severance" — was not met, the record belies that contention. As noted above, the judge who presided at the October 24 hearing had, in his previous written order, gone through the factors governing mandatory and discretionary severance and had found that, under those factors, a severance was unwarranted; additionally, the second judge again found that there "was a good cause for not granting the severance." Although defendant argues that the second judge was required to reassess the severance issue, the record establishes that defendant had not, as of the February speedy trial hearing, articulated any additional grounds for severance that would have called into question the first judge's ruling on that issue.

Because the requirements of § 18-1-405(6)(c) were met, the two-week delay caused by the consolidation was excluded from defendant's six-month speedy trial period. Defendant was not required to "waive" his speedy trial rights in order for the statutory exclusion to apply. Furthermore, the trial court's reference to its unavailability during one week in January does not require the conclusion that setting the trial beyond defendant's original speedy trial period was "caused by the court's congested docket," as defendant contends, and it does not render § 18-1-405(6)(c) inapplicable.

Thus, defendant was not entitled to dismissal of the charges based on a violation of his statutory speedy trial rights.

II.

Defendant contends reversal is required because he was denied the right afforded under Crim. P. 24(d)(1) to additional peremptory jury challenges in cases where a class one felony is charged. We agree.

A.

Defendant was charged with two counts of first degree kidnapping, both of which alleged that the named victim had suffered bodily injury. Although the charged offenses were class one felonies, the death penalty was statutorily unavailable because the victims were liberated alive. See § 18-3-301(2), C.R.S.2005 ("Whoever commits first degree kidnapping is guilty of a class 1 felony if the person kidnapped shall have suffered bodily injury; but no person convicted of first degree kidnapping shall suffer the death penalty if the person kidnapped was liberated alive prior to the conviction of the kidnapper.").

Before voir dire began, the trial court and counsel discussed the number of peremptory challenges that each side could exercise. Defendant's counsel took the position that, under Crim. P. 24, the defendants would be entitled to sixteen peremptory challenges, ten for the first defendant and three for each of the other two defendants. The court responded: "Plus one for each alternate, yes. That's correct."

However, at the conclusion of voir dire, the court told defense counsel that their eleventh peremptory challenge was their last one. After the jurors had been sworn in, defendant's counsel argued, out of the presence of the jury, that the defendants should have been granted additional peremptory challenges under Crim. P. 24(d)(1) because class one felonies were charged. Counsel pointed out that the court appeared to have agreed with that position when the issue was raised prior to voir dire. The court disagreed, stating that it had been "the rule since the dawn of time" that an increased number of peremptory challenges was available only in class-one-felony murder cases. However, the court invited counsel to provide authority on the issue and indicated, "If I change my mind, we'll pick another jury."

The following day, after hearing...

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5 practice notes
  • People v. Pena-Rodriguez, No. 11CA0034.
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Noviembre 2012
    ...art. II, §§ 16, 25 ; Dunlap v. People, 173 P.3d 1054, 1081 (Colo.2007). While voir dire is not a constitutional right, People v. Reynolds, 159 P.3d 684, 688 (Colo.App.2006), Colorado court rules allow defendants to examine potential 412 P.3d 467jurors for partiality. See Crim. P. 24(a). If ......
  • Gallegos v. Lehouillier, Court of Appeals No. 15CA0724
    • United States
    • Colorado Court of Appeals of Colorado
    • 23 Marzo 2017
    ...predict with any certainty whether 434 P.3d 708any of these contentions is likely to arise on retrial. See, e.g. , People v. Reynolds , 159 P.3d 684, 690 (Colo. App. 2006) (addressing only those issues that are "likely to recur"). For example, the contentions concerning damages will only ar......
  • People v. Hagos, No. 05CA2296.
    • United States
    • Colorado Court of Appeals of Colorado
    • 18 Febrero 2010
    ...ability to impose the death penalty on defendant. Hagos, 110 P.3d at 1290. [250 P.3d 608] Defendant nevertheless cites People v. Reynolds, 159 P.3d 684, 688 (Colo.App.2006), for the proposition that “case law has defined ‘capital case’ to mean a case in which a sentence of death is potentia......
  • People v. Vieyra, No. 05CA0958.
    • United States
    • Colorado Court of Appeals of Colorado
    • 5 Abril 2007
    ..."a defendant's due process rights are violated if he or she does not receive that which state law provides." People v. Reynolds, 159 P.3d 684, 688 (Colo.App. 2005); see People v. Lefebre, 5 P.3d 295, 306 However, we find no authority for the proposition that a trial court must remind a defe......
  • Request a trial to view additional results
5 cases
  • People v. Pena-Rodriguez, No. 11CA0034.
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Noviembre 2012
    ...art. II, §§ 16, 25 ; Dunlap v. People, 173 P.3d 1054, 1081 (Colo.2007). While voir dire is not a constitutional right, People v. Reynolds, 159 P.3d 684, 688 (Colo.App.2006), Colorado court rules allow defendants to examine potential 412 P.3d 467jurors for partiality. See Crim. P. 24(a). If ......
  • Gallegos v. Lehouillier, Court of Appeals No. 15CA0724
    • United States
    • Colorado Court of Appeals of Colorado
    • 23 Marzo 2017
    ...predict with any certainty whether 434 P.3d 708any of these contentions is likely to arise on retrial. See, e.g. , People v. Reynolds , 159 P.3d 684, 690 (Colo. App. 2006) (addressing only those issues that are "likely to recur"). For example, the contentions concerning damages will only ar......
  • People v. Hagos, No. 05CA2296.
    • United States
    • Colorado Court of Appeals of Colorado
    • 18 Febrero 2010
    ...ability to impose the death penalty on defendant. Hagos, 110 P.3d at 1290. [250 P.3d 608] Defendant nevertheless cites People v. Reynolds, 159 P.3d 684, 688 (Colo.App.2006), for the proposition that “case law has defined ‘capital case’ to mean a case in which a sentence of death is potentia......
  • People v. Vieyra, No. 05CA0958.
    • United States
    • Colorado Court of Appeals of Colorado
    • 5 Abril 2007
    ..."a defendant's due process rights are violated if he or she does not receive that which state law provides." People v. Reynolds, 159 P.3d 684, 688 (Colo.App. 2005); see People v. Lefebre, 5 P.3d 295, 306 However, we find no authority for the proposition that a trial court must remind a defe......
  • Request a trial to view additional results

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