People v. Stevenson

• Decision Date: 19 March 2009
• Docket Number: No. 06CA1612.,06CA1612.
• Citation: 228 P.3d 161
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stanley Leonard STEVENSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

228 P.3d 161

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stanley Leonard STEVENSON, Defendant-Appellant.

No. 06CA1612.

Colorado Court of Appeals, Div. II.

February 19, 2009.

Rehearing Denied March 19, 2009.

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John W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

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

Opinion by Judge CONNELLY.

Defendant, Stanley Leonard Stevenson, was convicted by a jury and sentenced to twenty-four years in the Department of Corrections for first degree burglary and aggravated robbery. The most significant appellate issue stems from the People's decision to grant defendant use-and-derivative-use immunity to compel his testimony at a codefendant's trial. By granting defendant such immunity before his own prosecution, the People undertook a heavy burden of proving affirmatively that the trial evidence derived from sources wholly independent of the immunized testimony. The trial court did not find, and on this record could not properly have found, that the People carried this heavy burden. Accordingly, while we reject defendant's remaining challenges, we remand for hearings and findings on defendant's immunity claim.

I. General Background

Defendant and a codefendant (who was tried first and convicted based in part on defendant's immunized testimony) broke into the victim's apartment. Officers responding to a neighbor's report of hearing screams from the apartment arrested defendant inside. The codefendant escaped, as did a female and a male confederate who had been waiting in a car outside.

The victim could not identify either man who broke into his apartment. Other evidence proved defendant was one of the men: (1) deputy sheriffs arrested defendant inside the apartment with a box-cutter and knife in his pockets; (2) the female confederate testified defendant and the codefendant had entered the apartment; and (3) defendant's post-arrest statements, including a videotaped statement, admitted some details of the events.

The defense conceded defendant was inside the apartment but claimed he went there to collect a debt. It maintained that the codefendant committed most of the alleged acts and that defendant lacked criminal intent for the charged crimes.

II. The Immunity Issue

A. Background

After the first jury was sworn, defense counsel orally moved for a mistrial and to dismiss based upon the prosecution's improper use of immunized testimony. Counsel explained to the trial judge, who had not presided over the codefendant's trial, that the People had compelled defendant's testimony under a grant of immunity. After hearing from both sides, the court granted a mistrial and scheduled the motion to dismiss for briefing and hearing.

The prosecutor conceded that even though he was not the prosecutor in the codefendant's trial, he and an investigator had attended that trial when defendant gave immunized testimony. The prosecutor further conceded having considered that testimony in framing a plea offer to defendant. Finally, the prosecutor conceded he and others in his office had discussed using the immunized testimony for possible impeachment before concluding this would be improper.

The prosecutor nonetheless denied having any present recall of the particulars of defendant's immunized testimony. He denied having made any improper use of the testimony and argued that any use would have been harmless error. The parties subsequently stipulated that the issues could be decided without a hearing based on the facts and arguments presented in the briefs.

The court denied the motion to dismiss the case. The court noted that because neither side had provided the transcript of defendant's immunized testimony, it had "no basis to find that the District Attorney has improperly used the immunized testimony to acquire any information or evidence, either directly or indirectly."

The court added, however, that the prosecutor's claim to have no present recollection of the testimony "strains credulity." Noting that the prosecutor "has had full exposure" to the immunized testimony, the court wrote "it may be highly improbable that this prosecutor will not make some use of the compelled testimony as the trial unfolds." Accordingly, the court "strongly recommended that the case be reassigned to a prosecutor who is not, and shall not be, privy to the immunized testimony in any way."

The District Attorney's Office did not follow the court's strong recommendation. The prosecutor reported that he, his supervisor, and the District Attorney had reviewed the court's order, but did not reassign the case: "Our decision was to have me try the case, and I have been admonished concerning the care I need to take."

Immunity issues resurfaced at trial when defense counsel objected that the prosecutor was framing jury voir dire questions based on a theory of complicity and information about a knife derived from the immunized testimony. The court was not persuaded as to complicity but warned that any suggestion a specific knife was used would be improper if it derived from immunized testimony.

Defense counsel again moved to dismiss after the jury returned guilty verdicts. The court then was provided the transcript of defendant's immunized testimony for the first time. It again denied the motion, ruling that "during this entire trial, the prosecution made no reference to or improper use of the defendant's immunized testimony."

B. Discussion

1. Legal Overview

Our federal and state constitutional privileges against compelled self-incrimination, though phrased differently, are functionally identical. Compare U.S. Const. amend. V (no person "shall be compelled, in any criminal case, to be a witness against himself") with Colo. Const. art. II, § 18 (no person "shall be compelled to testify against himself in a criminal case"). The former's reference to being a "witness" against oneself and the latter's reference to "testifying" against oneself mean the same thing. See United States v. Hubbell, 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) ("The word `witness' in the constitutional text limits the relevant category of compelled incriminating communications to those that are `testimonial' in character.").

Likewise, the federal and Colorado immunity statutes are functionally identical. Both formerly granted full "transactional" immunity to individuals compelled by court order to testify on matters that might incriminate them. Will Hood, Witness Immunity Under Colorado Law, 27 Colo. Law. 37 (Dec.1998). The federal statute, as amended in 1970 and upheld in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), provides "use-and-derivative use" immunity for compelled testimony. 18 U.S.C. § 6002. Colorado's immunity statute, as first 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 post-conviction relief aff'd, 950 P.2d 645 (Colo.App.1997) (Reali II).

Kastigar, the leading case on immunity issues, held that a defendant "need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources." 406 U.S. at 461-62, 92 S.Ct. 1653. This burden, moreover, "is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 460, 92 S.Ct. 1653.

Later Supreme Court decisions continue to emphasize the "heavy burden" imposed on the government when it seeks to prosecute a previously immunized defendant. See, e.g., Braswell v. United States, 487 U.S. 99, 117, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988) (grant of immunity "can have serious consequences," because "even in cases where the Government does not employ the immunized testimony for any purpose—direct or derivative—against the witness, the Government's inability to meet the `heavy burden' it bears may result in the preclusion of crucial evidence that was obtained legitimately"). Most recently, in Hubbell, the Court dismissed an indictment and reiterated the "affirmative duty on the prosecution, not merely to show that its evidence is not tainted by the prior testimony, but `to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.'" 530 U.S. at 40, 120 S.Ct. 2037 (quoting Kastigar, 406 U.S. at 460, 92 S.Ct. 1653).

Colorado cases likewise construe immunity protections broadly. In People v. Casselman, 196 Colo. 304, 583 P.2d 933 (1978), the district attorney charged a defendant with theft of wheat some six months after attending a bankruptcy hearing in which the defendant had testified subject to immunity protections. The supreme court, "deeming it highly improbable that the prosecution did not make some use of the testimony," affirmed dismissal of the charges because the district attorney had made "a prima facie use of the defendant's immunized testimony" by attending the hearing, and "the prosecution had not met its heavy burden of affirmatively establishing that the evidence it used as a basis for the charges was derived solely from independent sources." Id. at 307, 583 P.2d at 935-36. Casselman approvingly quoted an Eighth Circuit case that broadly described the possibly improper uses of immunized testimony to "`include assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea-bargain, interpreting evidence,...