People v. Smith

• Decision Date: 06 January 2011
• Docket Number: No. 08CA0657.,08CA0657.
• Citation: 275 P.3d 715
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Ronald Owen SMITH, Defendant–Appellant.
• Court: Colorado Court of Appeals

275 P.3d 715

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

v.Ronald Owen SMITH, Defendant–Appellant.

No. 08CA0657.

Colorado Court of Appeals, Div. I.

Jan. 6, 2011.

John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Sean C. Thomson, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge BERNARD.

Defendant, Ronald Owen Smith, appeals a judgment of conviction based on a jury verdict finding him guilty of conspiracy to commit theft. We affirm.

I. Background

From January 25 to February 12, 2007, purses were stolen from cars owned by four women while they were inside a day care center in Jefferson County. Checks and credit cards taken from these purses were used at stores to purchase merchandise without the owners' knowledge or permission.

Police obtained eyewitness descriptions and video surveillance footage of a person who had made some of the fraudulent purchases with the stolen credit cards and checks. They identified her as Michelle Schreiber (codefendant). They later connected her with purchases made with credit cards or checks from all four of the stolen purses.

Video footage of two of these transactions showed that a man—later identified as defendant—accompanied codefendant. The police learned that defendant was also with codefendant during some of the other fraudulent purchases.

In March 2007, they were separately charged in Jefferson County with having committed the crime of conspiring to commit theft, a class five felony. Codefendant was a named coconspirator in defendant's case. They were also charged in Adams County with having made fraudulent purchases with credit cards and checks that had been stolen in a similar way.

Defendant's trial was originally set for the end of October 2007. On the day of trial, the prosecutor sought to continue the trial because he was ill, and proposed that the trial be reset in February 2008, when defendant's Adams County case would probably be resolved.

The trial court granted the request for a continuance, but proposed November 13, 2007, for trial. Defendant asked that the trial be reset after November 19, 2007, because codefendant, who had pled guilty in her Jefferson County case, was to be sentenced on that day. Defendant stated that he wished to call codefendant as a witness at trial, but he thought that codefendant's Fifth Amendment privilege against self-incrimination might be implicated if she testified before she was sentenced. Citing docket congestion, including a two-week murder trial, the court denied this request and reset the trial for November 13.

At trial, defendant contended that he was unaware that codefendant was engaged in illegal activity. He did not dispute evidence that placed him with codefendant when she was making some of the fraudulent transactions.

In reply, the prosecution offered evidence that defendant had possessed some of the stolen credit cards, and played a surveillance video that showed defendant pull one of the stolen credit cards from his pocket and hand it to codefendant. Codefendant used the card to make a purchase.

The prosecution also presented evidence about the Adams County case, arguing that it was similar to the Jefferson County case. Stolen credit cards involved in the Adams County case were found in defendant's possession when he was arrested. Receipts from purchases made with these credit cards were found in defendant's wallet and in the car he was driving.

Defendant called codefendant as a witness. She had been sentenced in the Adams County case, but she had not yet been sentenced in the Jefferson County case. She consulted with her attorney by telephone immediately before her testimony, and the attorney listened to the proceedings on the telephone while she was questioned.

Defense counsel asked codefendant her name. She replied by stating her name.

Defense counsel then asked codefendant if she were “acquainted” with defendant. Codefendant replied, “I've been instructed and advised by my attorney ... that I have the right to plead the Fifth due to my mental health. That's all I'm going to say.”

The trial court asked her, “[Is it] true that you do not wish to testify as to any matter in this case?” Codefendant answered, “Not at this time, no.” The trial court allowed her to leave.

Defendant argued that codefendant's invocation of her privilege against self-incrimination was inappropriate. He contended that codefendant's testimony on certain matters would not have implicated her right to be free from compelled self-incrimination. These matters included testimony about (1) codefendant's previous relationship with defendant; (2) their child; (3) where they lived; (4) the death of her father shortly before Christmas; and (5) “anything” that happened in the Adams County case because she had already pled guilty and been sentenced in that case.

The trial court disagreed because codefendant had not yet been sentenced in the Jefferson County case. The court explained its rationale.

In connection with sentencing ... the issues of guilt ... go to [the] issue of relative culpability[,] and they go to the extent of the entire criminal scheme. Such matters can be raised both in aggravation and in mitigation at sentencing.

There is evidence before this jury from which a rational fact finder could conclude that [defendant and codefendant] were in a significant deliberate ongoing scheme....

[Codefendant] does not have any obligation to incriminate herself as to the full extent of the criminal scheme, as to who was more culpable and more active in terms of the planning or execution of these thefts, as to who benefitted primarily from the thefts.

And all of those are legitimate matters that could be raised at time of sentencing. Thus given the fact that a rational judge or rational fact finder could conclude that these two were involved in a significant ongoing scheme, it seems to me that invoking her right as to the nature of her relationship with [defendant] is actually a reasonable exercise of that right....

If I had known that she was going to exercise her Fifth Amendment right from the get-go, I wouldn't have had her do it in front of the jury.

I thought she was going to answer some questions and exercise that right only selectively. And I think that's what you all thought or we wouldn't have done it in front of the jury.

Defendant then moved for a continuance of at least a week so that codefendant could be recalled after she had been sentenced in the Jefferson County case. The trial court denied this request, and the trial resumed.

At that point, the prosecution stipulated that defendant could introduce into evidence a four-page letter that codefendant had written in the Adams County case. As relevant here, it stated:

I would've never thought that [defendant] would end up with the charges he is facing. He is a victim of my crimes, just because I had him with me didn't mean he knew anything that I was doing. I don't know how I will ever be able to forgive myself for causing [defendant's] current problems.... As far as I see it, all his charges that are any way related to my crimes should be dismissed.

Defendant called no other witness and offered no other evidence. The jury found him guilty as charged.

II. Codefendant's Testimony

Defendant contends that the trial court violated his Sixth Amendment right to present a defense. It did so, he contends, by accepting codefendant's invocation of her Fifth Amendment right to be free from compelled self-incrimination and then excusing her. We disagree.

A. Standard of Review

As an initial matter, we must determine the appropriate standard of review. The parties agree that we should review the trial court's decision for an abuse of discretion. However, the cases they cite for this proposition do not directly address what the standard should be when we review a trial court's decision to permit a witness to invoke his or her Fifth Amendment privilege against self-incrimination. See People v. Lowe, 660 P.2d 1261, 1264 (Colo.1983) (determination of relevancy of evidence is within a trial court's discretion), overruled in part on other grounds by Callis v. People, 692 P.2d 1045, 1050 (Colo.1984); People v. Davis, ––– P.3d ––––, ––––, 2010 WL 2105878 (Colo.App.2010) (prosecutor's comment in closing argument did not infringe upon the defendant's Fifth Amendment rights); People v. Young, 987 P.2d 889, 894 (Colo.App.1999) (consideration of defendant's lack of remorse at sentencing violated his Fifth Amendment privilege against self-incrimination); People v. Abeyta, 728 P.2d 327, 331 (Colo.App.1986) (trial court properly concluded that testimony of witnesses who would invoke their Fifth Amendment rights was irrelevant).

We have not found any Colorado appellate opinion that directly addresses the proper standard of review in these circumstances. Authority from other jurisdictions is conflicting. Compare, e.g., United States v. Longstreet, 567 F.3d 911, 922 (7th Cir.2009) (“We review a district court's Fifth Amendment privilege determination for an abuse of discretion.”), and United States v. Washington, 318 F.3d 845, 856 (8th Cir.2003)(“We review the court's decision to permit the witness to invoke his or her Fifth Amendment privilege for abuse of discretion.”), with United States v. Rivas–Macias, 537 F.3d 1271, 1278 (10th Cir.2008)(“Whether an individual may properly invoke the privilege against self-incrimination is a question of law, which we review de novo.”). In light of this conflicting case law, we will exercise an abundance of caution and assume, without deciding, that the proper standard of review is de novo. We resolve this issue by applying that standard.

B. Analysis

There is tension between the rights of a defendant and the rights of a witness. On the one hand, “[t]he Fifth Amendment of the United States...