People v. Weese, 86CA0167

• Decision Date: 12 November 1987
• Docket Number: No. 86CA0167,86CA0167
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James L. WEESE, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 778

753 P.2d 778

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James L. WEESE, Defendant-Appellant.

No. 86CA0167.

Colorado Court of Appeals,

Div. III.

Nov. 12, 1987.

Rehearing Denied Dec. 3, 1987.

Certiorari Denied April 18, 1988.

Duane Woodard, Atty. Gen. Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cynthia A. Savage, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Thomas R. Williamson, Deputy State Public Defender, Denver, for defendant-appellant.

BABCOCK, Judge.

Defendant appeals the judgment of conviction entered on a jury verdict finding him guilty of vehicular homicide and criminal impersonation. We affirm.

I.

Defendant first contends that the trial court abused its discretion by refusing to sever the criminal impersonation charge from the vehicular homicide charge. However, we do not consider this contention because defendant failed to renew his motion to sever during trial or at the close of the evidence, thus barring appellate review of his claim.

Approximately three months before trial, defendant moved to sever the two charges, as well as a separate driving after judgment prohibited charge. At a pretrial hearing on his motion, the trial court severed the driving after judgment prohibited count, but denied the motion as to the other charges.

On the first morning of trial, before jury selection began, defendant renewed his motion to sever the remaining charges. The trial court again denied the motion. Defendant failed to renew his motion to sever at any time during trial or at the close of the evidence. He did reiterate his objection to joinder in his motion for new trial.

A defendant seeking appellate review of a trial court's discretionary denial of severance must renew the severance motion during presentation of evidence at trial or be deemed to have "waived his right to challenge on appeal the trial court's denial of his pretrial motion to sever the charges." People v. Aalbu, 696 P.2d 796 (Colo.1985). See also 2 ABA, Standards for Criminal Justice, Standard 13-3.3(c).

The decision to seek severance is likely to be based on tactical factors, often involving complex considerations. See People v. Peterson, 656 P.2d 1301 (Colo.1983). Thus, where, as here, a pretrial motion for severance indicates that a defendant is aware of the risk presented by joinder of charges, failure to timely renew the motion and alert the trial court to the need to reconsider its original decision in light of the evidence presented at trial is deemed an election to seek a jury determination of the charges despite the risk, and that election operates as a waiver of the right to seek review even for plain error. See People v. Aalbu, supra; People v. Peterson, supra. See also 2 ABA, Standards for Criminal Justice, Standard 13-3.3(a) at 13-40 (commentary). United States v. Guess, 745 F.2d 1286 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1219, 84 L.Ed.2d 360 (1985) (failure to renew motion for severance " 'cannot serve as insurance against an adverse verdict' "; motion is waived for purposes of appeal if not timely renewed). Accordingly, defendant's claim on this issue is deemed to have been waived, and will not now be reviewed.

II.

Defendant also asserts that, under CRE 1003, microfilm copies of two Colorado driver licenses, which copies reproduced fingerprints used to establish...