People v. Warren, No. 00CA1398.

• Docket Nº: No. 00CA1398.
• Citation: 55 P.3d 809
• Case Date: February 28, 2002
• Court: Court of Appeals of Colorado

55 P.3d 809

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Kathryn WARREN, a/k/a Kathryn Sandoval, Defendant-Appellant

No. 00CA1398.

Colorado Court of Appeals, Div. III.

February 28, 2002.

Rehearing Denied April 18, 2002.¹ Certiorari Denied October 15, 2002.²

55 P.3d 811

Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Kathryn Warren, a/k/a Kathryn Sandoval, appeals the judgment of conviction entered upon a jury verdict finding her guilty of possessing a schedule II controlled substance, a class four felony. We affirm.

In executing a search warrant at defendant's house, police discovered drug paraphernalia and a usable amount of methamphetamine in her bedroom dresser.

Defendant maintained at trial that the prosecution could not prove that she had placed, or that she otherwise knew about, the methamphetamine in her dresser. In support thereof, defendant pointed to evidence that she lived in the house with two other persons, one of whom shared the bedroom

55 P.3d 812

with her, and that a musical band practiced in the house several times a week

On the first day of trial, defendant moved to exclude evidence that she had previously given one housemate methamphetamine. Initially, the trial court ruled that the evidence would be admitted as res gestae if the prosecution established that such a transaction occurred recently. Upon learning later that same day, however, that the housemate could not recall when during the prior year defendant gave him methamphetamine, the trial court ruled that the evidence would not qualify as res gestae. Nor, the court determined, would the evidence be admissible under CRE 404(b) because the prosecution had not previously notified the defense of its intent to introduce it at trial.

On the second day of trial, the trial court sua sponte reversed its last decision, holding instead that the lack of pretrial notice would not preclude admission of the housemate's testimony under CRE 404(b). The housemate's testimony was ultimately admitted, and at the conclusion of the trial, the jury found defendant guilty.

I. Defendant's Other Bad Acts

Defendant raises several contentions about the evidence that she previously supplied her housemate with methamphetamine.

A. Lack of Pretrial Notice

First, defendant contends that this evidence was inadmissible because the prosecution failed to notify her prior to trial of its intent to introduce the evidence at trial. We disagree.

To date, no Colorado appellate opinion has determined whether pretrial notice of intent to use other bad act evidence is required by CRE 404(b). However, "[t]he traditional and majority view is that the prosecution has no duty to give [pretrial] notice." See Edward J. Imwinkelried, Uncharged Misconduct Evidence § 9:09, ch. 9 at 20 (1996).

The supreme court has noted only that CRE 404(b) requires a trial court to make pertinent findings regarding the admissibility of other bad act evidence "before permitting such evidence to come before the jury." People v. Garner, 806 P.2d 366, 372 n. 4 (Colo.1991). In contrast to the statutory provision concerning the admissibility of evidence of other sexual acts, see § 16-10-301(4)(a), C.R.S.2001, or Fed.R.Evid. 404(b), nothing in the text of CRE 404(b) requires that the prosecution advise a defendant in advance of trial of its intent to introduce other bad act evidence.

The text of CRE 404(b) is virtually identical to the version of Fed.R.Evid. 404(b) that was in effect before December 1991. See Jack B. Weinstein & Margaret Berger, Weinstein's Federal Evidence § 404App.01[1], at 404App.-1 (Joseph M. McLaughlin ed., 2d ed.2001). Consequently, federal case law interpreting the pre-December 1991 version of Fed.R.Evid. 404(b) is persuasive in determining the meaning of CRE 404(b). See People v. Braley, 879 P.2d 410, 412 (Colo.App.1993)(interpreting CRE 604). Federal courts found no requirement of pretrial notice in that version of the rule. See United States v. Anderson, 799 F.2d 1438, 1440 (11th Cir.1986); United States v. Kendall, 766 F.2d 1426, 1440-41 (10th Cir.1985)(neither due process nor pre-December 1991 version of Fed.R.Evid. 404(b) required pretrial notice).

In December 1991, a pretrial notice requirement was added to Fed.R.Evid. 404(b) to "reduce surprise and promote early resolution on the issue of admissibility." Weinstein, supra, § 404App.03[2], at 404App.-8, -9. Colorado has not, to date, amended its version of rule 404(b) in a similar manner.

We conclude, based upon the text of CRE 404(b) and the federal court interpretations of a past, but identically worded, version of Fed.R.Evid. 404(b), that CRE 404(b) does not require pretrial notice as a prerequisite for admitting other bad act evidence.

We do not, by our holding here, discount the possibility that there may be circumstances in which pretrial notice, even though not required by CRE 404(b), might be necessary to avoid prejudicial surprise to a defendant. This case, however, does not present such circumstances.

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The record reflects that defendant was not surprised by the evidence or by the prosecution's attempted use thereof. The affidavit used to obtain the warrant for defendant's arrest contained a statement by the housemate that he had obtained methamphetamine from defendant. And, defendant anticipated the prosecution's use of the evidence at trial: on the first day of trial, she moved in limine to prohibit the prosecution from introducing the evidence. During the hearings on that motion, defendant demonstrated her familiarity with the evidence and with the res gestae and CRE 404(b) arguments surrounding its admissibility

Consequently, we perceive no error in the receipt of the evidence simply because the prosecution failed to give defendant pretrial notice of its intent to use the evidence at trial.

B. Trial Court's Reversal of Its Prior Ruling

Next, defendant contends that the trial court's sua sponte reversal of its prior ruling impermissibly undermined her counsel's ability to effectively assist her at trial. We are not persuaded.

Under the law of the case doctrine, prior relevant rulings made in the same case generally are to be followed. However, the doctrine "is not a limit on a court's power to revisit an issue if the court feels such review is necessary." 18 James W. Moore et al., Moore's Federal Practice § 134.21[1] (3d ed.2001). A trial court may, in its discretion, reconsider and reverse a prior ruling if it determines that "its former ruling is no longer sound because of changed conditions, it needs to correct its previous ruling because of a legal or factual error, an intervening change in the law has occurred, or manifest injustice would result from its original ruling." Janssen v. Denver Career Serv. Bd., 998 P.2d 9, 15 (Colo.App.1999). See also People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999); People ex rel. Gallagher v. District Court, 666 P.2d 550, 553 (Colo.1983).

Here, the trial court recognized that its initial ruling conditioning the admissibility of CRE 404(b) evidence upon prosecutorial pretrial notice was legally erroneous. Consequently, the court acted within its discretion in reversing that ruling and ultimately permitting the evidence to be introduced at trial. See Chun v. Board of Trustees, 92 Hawai`i 432, 992 P.2d 127, 136 (2000)(court was not precluded from sua sponte reversing its prior ruling, which was based on an erroneous application of the law).

Defendant's reliance on People v. Allen, 885 P.2d 207 (Colo.1994), for the proposition that the trial court could not sua sponte change its decision, is misplaced. In Allen, the supreme court did not address the issue whether a court could sua sponte reconsider its own prior ruling. Instead, it held only that the circumstances did not justify one appellate court overruling a prior decision by another appellate court.

Here, the circumstances justified the trial court's reconsideration of its prior ruling because the prior ruling was legally erroneous. See Pearson v. District Court, 924 P.2d 512, 515 (Colo.1996)(recognizing that prejudgment orders can be reconsidered at any time and that the law of the case doctrine "is not a rule to perpetuate error")(quoting 1B James W. Moore & Jo Desha Lucas, Moore's Federal Practice § 0.404[4.-1], at II-2 (2d ed.1995)).

Further, we reject any suggestion that the trial court's reversal of its prior ruling rendered the trial unfair by...