People v. Whiteaker

• Docket Number: Court of Appeals No. 20CA1339
• Decision Date: 28 July 2022
• Citation: 519 P.3d 1127,2022 COA 84
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Taunia Marie WHITEAKER, Defendant-Appellant.
• Court: Colorado Court of Appeals

519 P.3d 1127

2022 COA 84

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

v.Taunia Marie WHITEAKER, Defendant-Appellant.

Court of Appeals No. 20CA1339

Colorado Court of Appeals, Division VII.

Announced July 28, 2022

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 A court may not punish a criminal defendant twice for the same offense: "The Double Jeopardy Clauses of the United States and Colorado Constitutions provide that an accused shall not be twice placed in jeopardy for the same offense." Reyna-Abarca v. People , 2017 CO 15, ¶ 49, 390 P.3d 816, 824 (first citing U.S. Const. amends. V, XIV ; and then citing Colo. Const. art. II, § 18 ). An accused is protected "not only from facing a second trial for the same offense but also from suffering multiple punishments for the same offense." Id.

¶ 2 The merger doctrine, like the double jeopardy doctrine, generally seeks to "protect[ ] against punishing one criminal act twice." People v. Henderson , 810 P.2d 1058, 1060 (Colo. 1991) ; cf. People v. Leske , 957 P.2d 1030, 1035 (Colo. 1998) (holding that, for purposes of double jeopardy and merger, a defendant may be "subjected to multiple punishments based upon the same criminal conduct" but only if the General Assembly "specifically authorized" the punishments). "Merger is an aspect of double jeopardy. Double jeopardy applies to subsequent prosecutions; merger applies to the concept of multiple punishment when multiple charges are brought in a single prosecution." Henderson , 810 P.2d at 1060 (quoting State v. Gammil , 108 N.M. 208, 769 P.2d 1299, 1300 (N.M. Ct. App. 1989) ).

¶ 3 In this case, Taunia Marie Whiteaker contends that the trial court violated her right against double jeopardy by not merging her conviction for first degree criminal trespass into her conviction for second degree burglary. The last time the Colorado Supreme Court directly addressed this issue, it expressly held that "first degree criminal trespass is not a lesser included offense of second degree burglary." People v. Garcia , 940 P.2d 357, 362 (Colo. 1997). As the special concurrence explains in a thoroughly researched opinion, however, later supreme court decisions have called Garcia ’s reasoning into question. See infra ¶¶ 50-60.

¶ 4 But the supreme court has never expressly overruled Garcia . For this reason, we must adhere to that precedent. Because we are bound to follow Garcia , we reject Whiteaker's merger argument. See People v. Tarr , 2022 COA 23, ¶ 33, 511 P.3d 672, 681 (explaining that the court of appeals is bound by, and may not depart from, supreme court precedent).

¶ 5 In addition, in this case, we address the novel issue of whether a criminal defendant is entitled to be referred to by her name, and not generically as "the defendant," in the jury instructions. We conclude that she is not entitled to be referred to by her name.

¶ 6 For the reasons explained further below, we affirm Whiteaker's judgment of conviction entered on jury verdicts finding her guilty of second degree burglary, first degree criminal trespass, third degree assault, and harassment.

I. Background Facts and Procedural History

¶ 7 Whiteaker lived with her husband, J.W. (husband), and husband's daughter A.W. (stepdaughter). After Whiteaker and stepdaughter got into an argument, husband told stepdaughter to go to the house of her grandmother, L.W. (grandmother). Whiteaker could not confront stepdaughter at grandmother's house because Whiteaker was not welcome there.

¶ 8 Believing that stepdaughter was at grandmother's house, Whiteaker sent several text messages to grandmother, telling her to send stepdaughter home, insulting grandmother, and threatening to call the police. Grandmother did not respond to the text messages. Around this time, husband arrived at grandmother's house.

¶ 9 Whiteaker drove to grandmother's house and entered through the unlocked front door. After grandmother told Whiteaker to leave, a physical confrontation ensued between them. Husband intervened and, while he and Whiteaker were struggling, Whiteaker punched him "two or three" times.

¶ 10 The prosecution charged Whiteaker with second degree burglary, first degree criminal trespass, third degree assault, and harassment. Whiteaker presented a theory of self-defense, arguing that grandmother attacked her immediately when she entered grandmother's house and that husband attacked her while she was defending herself from grandmother.

¶ 11 A jury convicted Whiteaker of the charged offenses.

II. Analysis

¶ 12 Whiteaker contends that the trial court reversibly erred by (1) failing to merge her conviction for first degree criminal trespass into her conviction for second degree burglary; (2) denying defense counsel's request that the jury instructions refer to Whiteaker by name; and (3) instructing the jury on the initial aggressor exception to self-defense while rejecting the defense's tendered supplemental instruction.

A. The Merger Doctrine

¶ 13 Whiteaker asserts that first degree criminal trespass is a lesser included offense of second degree burglary and, thus, that the trial court erred by failing to merge her convictions. We disagree.

¶ 14 "Whether two convictions must merge is a question of law that we review de novo." Thomas v. People , 2021 CO 84, ¶ 19, 500 P.3d 1095, 1101.

¶ 15 "[A] defendant may not be convicted of two offenses for the same conduct if the lesser offense is included in the greater." Page v. People , 2017 CO 88, ¶ 9, 402 P.3d 468, 470 ; see § 18-1-408(1)(a), C.R.S. 2021 (providing that a defendant "may not be convicted of more than one offense if ... [o]ne offense is included in the other"). The supreme court expressly held in Garcia that "first degree criminal trespass is not a lesser included offense of second degree burglary." 940 P.2d at 362.

¶ 16 Whiteaker directs us to recent cases that clarify the standard for identifying a lesser included offense. See, e.g. , Reyna-Abarca , ¶¶ 51-53, 64, 390 P.3d at 824, 826 (articulating the statutory elements test for determining whether two convictions must merge). Some of these cases appear to question—without overruling— Garcia ’s holding on merger. See People v. Rock , 2017 CO 84, ¶ 19 n.5, 402 P.3d 472, 478 n.5 (explaining that, "at least until [the supreme court's] holding in Reyna-Abarca , first degree criminal trespass ... was clearly not considered to be a lesser included offense of second degree burglary"). The supreme court has never overruled Garcia , however, and the General Assembly has not materially amended the relevant language in the first degree criminal trespass and the second degree burglary statutes since the supreme court decided the case.

¶ 17 Because the supreme court "alone can overrule [its] prior precedents concerning matters of state law," People v. Novotny , 2014 CO 18, ¶ 26, 320 P.3d 1194, 1203, we must follow Garcia . See Tarr , ¶ 33, 511 P.3d at 681. "It matters not that the supreme court authority is old or that we purportedly discern a better rule of law. It is the prerogative of the supreme court alone to overrule its cases." DIA Brewing Co. v. MCE-DIA, LLC , 2020 COA 21, ¶ 63, 480 P.3d 703, 714, aff'd on other grounds sub nom. Schaden v. DIA Brewing Co. , 2021 CO 4M, 478 P.3d 1264 ; cf. People v. LaRosa , 2013 CO 2, ¶ 51, 293 P.3d 567, 580 (Coats, J., dissenting) ("[I]t ... remains the prerogative of the [United States] Supreme Court alone to overrule one of its precedents, which must therefore continue to be followed, even if they have been significantly undermined by subsequent changes in judicial doctrine.") (citation omitted). This prerogative applies even when the precedent's legal foundations are "infirm[ ]," "increasingly wobbly," and "moth-eaten." State Oil Co. v. Khan , 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (quoting Khan v. State Oil Co. , 93 F.3d 1358, 1363 (7th Cir. 1996) ).

¶ 18 So, regardless of the persuasiveness of Whiteaker's merger argument, we are bound to follow Garcia . We adopt the reasoning of the division in People v. Denhartog , which considered the same issue presented here and in Garcia —whether convictions for first degree criminal trespass and second degree burglary merge:

[T]he supreme court has expressly held [in Garcia ] that first degree criminal trespass is not a lesser included offense of second degree burglary.

Denhartog points out that the supreme court's more recent case law, in which it clarified the standard for identifying a lesser included offense, appears to call into question Garcia ’s continued viability. Still, the supreme court "alone can overrule [its] prior precedents concerning matters of state law." Thus, if a precedent of the supreme court "has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions," the court of appeals "should follow the case which directly controls," leaving to the supreme court "the prerogative of overruling its own decisions."

2019 COA 23, ¶¶ 77, 78, 452 P.3d 148, 160 (citations omitted).

¶ 19 We therefore reject Whiteaker's assertion that her conviction for first degree criminal trespass must merge into her conviction for second degree burglary under the statutory elements test articulated in Reyna-Abarca .

B. Defense Counsel's Request that the Jury Instructions Refer to Whiteaker by Name

¶ 20 Whiteaker contends that the trial court reversibly erred by denying defense counsel's request that the jury instructions refer to Whiteaker by name. She argues that the references to "the defendant" in the instructions violated her right to due process. We are not persuaded.

1. Additional Facts

¶ 21 At the jury instruction conference, defense counsel requested that the jury instructions refer to Whiteaker as either "Ms. Whiteaker" or...