People v. Shepard, 97CA2274.

• Decision Date: 04 March 1999
• Docket Number: No. 97CA2274.,97CA2274.
• Citation: 989 P.2d 183
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth SHEPARD, Defendant-Appellant.
• Court: Colorado Court of Appeals

989 P.2d 183

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth SHEPARD, Defendant-Appellant.

No. 97CA2274.

Colorado Court of Appeals, Div. V.

March 4, 1999.

Rehearing Denied April 15, 1999.

Certiorari Denied November 8, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Lauren A. Edelstein, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Law Office of Ann L. Sussman, Ann L. Sussman, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAVIDSON.

Defendant, Kenneth Shepard, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of aggravated motor vehicle theft and theft. He also appeals from the modified order of restitution entered by the trial court. We affirm the judgment of conviction, vacate the modified order of restitution, and remand the case for further proceedings.

On January 5, 1997, the victim left his car running with the keys in the ignition and it was stolen. Although the car was returned, personal items of the victim that had been left in the car were missing. Some days later, defendant was arrested for the theft after he was involved in an accident while driving another stolen vehicle and the victim's identification was found in his possession.

I.

Defendant first contends that the trial court erred in refusing to allow him to represent himself. He argues further that, at a minimum, the court was obliged to inquire of him whether he understood the consequences of proceeding pro se and to determine whether he should be allowed to so proceed. We disagree. A person accused of a crime is entitled to represent himself or herself. The grant or denial of a defendant's request to so proceed lies within the discretion of the trial court. People v. Mogul, 812 P.2d 705 (Colo.App.1991).

A request for self-representation must be unequivocal. If the request is stated in uncertain terms or in an uncertain manner, it cannot be regarded as a demand for self-representation, nor can it be considered a waiver of the defendant's right to counsel under the Sixth Amendment. People v. Mogul, supra.

If a defendant makes an unequivocal demand to represent himself or herself, the trial court must determine whether the demand constitutes a valid, knowing, and voluntary waiver of the right to counsel. In making this determination, the court must take into account the circumstances surrounding the request, including the defendant's reason for the request. People v. Barnes, 636 P.2d 1323 (Colo.App.1981).

Here, prior to defendant's arraignment hearing, the trial court informed him that his attorney had moved to withdraw from the case because of a conflict of interest and that the court would appoint another attorney to represent defendant. Although defendant stated that he was ready to continue pro se, the court told defendant it would appoint another attorney. Defendant did not object to this appointment. The record indicates that defendant was confused about what was happening that day but had stated that he was willing to proceed with the hearing without an attorney present.

Later, newly appointed defense counsel sought to withdraw from the case and informed the trial court that defendant had said that he would feel more comfortable with another attorney. Defendant made no request to represent himself. The motion to withdraw was denied.

Defense counsel subsequently filed a new motion to withdraw that was granted. Defendant then waived his right to speedy trial in order for the court to appoint a new attorney. Again, defendant made no request to proceed pro se.

In light of defendant's apparent state of mind at the pre-arraignment hearing and his subsequent actions, we conclude that defendant did not make an unequivocal request for self-representation, and therefore, the trial court did not err in failing to make a ruling. See People v. Davis, 851 P.2d 239 (Colo.App.1993)

(where defendant expressed willingness to proceed pro se one time but did not repeat that offer, the trial court was not confronted with a request for self-representation).

II.

We also disagree with defendant's contention that the trial court improperly admitted evidence of other bad acts under CRE 404(b).

A.

Although evidence of other crimes, wrongs, or other acts is not admissible to prove a defendant's character in order to show that he or she acted in conformity therewith, such evidence may be admitted for other valid purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. People v. Spoto, 795 P.2d 1314 (Colo.1990).

In determining whether such evidence is admissible under CRE 404(b), the trial court should consider whether: 1) the proffered evidence relates to a material fact in question; 2) the evidence is logically relevant; 3) such relevance is independent of the inference that defendant has acted in conformity with a bad character; and 4) the probative value is substantially outweighed by the danger of unfair prejudice to the defendant. People v. Spoto, supra.

Here, the prosecution, in order to show motive, intent, plan, identity, and absence of mistake or accident, sought to admit evidence that defendant had stolen another car, from a location near the first theft and his home, under similar circumstances, within four days of the time the victim's car had been taken. Both cars were left unattended with their motors running and with the keys in the ignition at the time of the thefts. While driving the second car, defendant was involved in an accident following a high-speed chase. Defendant then gave the investigating officer the victim's name as his own and had the victim's driver's license with him.

The trial court determined that the evidence of the other car theft with its attending circumstances was admissible and relevant to the contested issue of identity. We agree.

Here, the issue of identification was disputed. Evidence relating to defendant's identity, therefore, was material and relevant. The fact that the victim's driver's license was found in defendant's possession after the victim's car had been stolen and that defendant identified himself by the victim's name, was relevant to the identity of the person who had committed the offense. The methods used in committing the thefts of the two cars were sufficiently similar to render the evidence admissible. Further, the trial court gave a limiting instruction before each witness' testimony concerning this evidence. Thus, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. See People v. Vialpando, 954 P.2d 617 (Colo.App.1997)

(proper limiting instruction alleviates danger of unfair prejudice).

B.

Defendant asserts that, even if the evidence is admissible under CRE 404(b), the trial court's limiting instruction was insufficient to prevent unfair prejudice to him. Specifically, he argues that the day before the evidence of the second theft and high-speed chase was presented, a Denver police officer was killed in a high-speed chase. Therefore, he argues, the evidence of the high-speed chase in which he was involved became highly prejudicial and should have been excluded. Again, we disagree.

Here, defendant did not object to the limiting instruction, but objected to a police officer's testimony that defendant had been involved in a high-speed chase. The trial court overruled his objection, but offered to give a special limiting instruction to the jurors that the high-speed chase in Denver should not influence their deliberations. Defendant declined the instruction.

That certain events occurred during the trial does not change the fact that the trial court properly admitted the evidence for a limited purpose. Because defendant did not object to the limiting instruction given to the jury and declined the giving of a special limiting instruction, and because we presume the jury followed the court's instruction concerning the limited use for which the evidence was presented, we perceive no error. See Peltz v. People, 728 P.2d 1271 (Colo.1986)

(presumption that jury follows court's instructions).

III.

Defendant also contends that the trial court erred in modifying the order of restitution and increasing the amount of restitution he is required to pay without a hearing. We agree.

A trial court is obliged to order a defendant to pay restitution and fix the amount of the restitution as a part of the judgment at the time of sentencing. People v. Johnson, 780 P.2d 504 (Colo.1989).

The court has broad discretion in determining the appropriate terms of a restitution order, and absent an abuse of discretion, the court's order will not be disturbed on appeal. People v. Estes, 923 P.2d 358 (Colo.App.1996).

Here, at the time of sentencing, the court ordered defendant to pay restitution in the amount of $1,145 to compensate the victim for his loss as a result of defendant's criminal conduct. This amount reflected the amount requested by the prosecution on the victim's behalf and was supported by evidence presented at the sentencing hearing. The prosecution did not indicate that restitution might have...