author: Justice RICE

text:
    In re the PEOPLE of the State of Colorado, Plaintiff, v. Aaron Dean SISNEROS, Defendant.
    No. 02SA117.
    Supreme Court of Colorado.
    Oct. 7, 2002.

      Altman, Keilbach, Lytle, Parlapiano & Ware, P.C., David E. Ware, Pueblo, Colorado, Attorneys for Dr. Naney Aldrich, Petitioner.
    Mika & Associates, P.C., Patrick D. Mika, Colorado Springs, Colorado, Attorneys for Defendant.
   Justice RICE

delivered the Opinion of the Court.

This original proceeding arises out of a criminal case currently pending in the Pueblo County District Court. The Petitioner, Dr. Nancy Aldrich, seeks to prevent the District Court from enforcing a subpoena duces te-cum requiring her to provide "[alny and all files, documents, and reports" relating to her treatment of the victim of the alleged sexual assault at issue in the criminal case. The trial court denied Petitioner's motion to quash the subpoena duces teeum. Instead, it ordered her to turn over the records for an in camera review. We issued a rule to show cause to Defendant.

We hold that the psychologist-patient privilege applies and shields the documents requested by Defendant from discovery-even in camera review by the trial court. Once the privilege attaches, the privilege holder must waive, explicitly or implicitly, the privilege before Defendant can obtain discovery. The victim's testimony at the preliminary hearing did not constitute a waiver of the privilege. Since there was no waiver, the subpoena duces teeum should have been quashed. The trial court did not have discretion to conduct an in camera review of the documents. The rule to show cause is made absolute.

I. FACTS AND PROCEDURAL HISTORY

Defendant, Aaron Dean Sisneros, has been charged with sexual assault on a child by one in a position of trust in violation of section 18-3-405.83(1), 6 C.R.S. (2002). Because this case is in the pre-trial stage, the facts of the alleged assault are based entirely on the victim's testimony at the preliminary hearing. The victim testified that she was sexually assaulted by the Defendant at his home during a sleepover with Defendant's daughter, a friend of the victim. Defendant's daughter, although in the same room, was asleep at the time and there were no other witnesses.

The victim remained largely silent regarding the incident until June 2001-some six or seven months later. At that time, she informed her parents who in turn reported the assault to law enforcement. After the alleged assault was revealed to the victim's parents and reported to authorities, the vie-tim began meeting with Dr. Nancy Aldrich, a state-licensed psychologist.

On the basis of the victim's accusations, the Defendant was arrested and charged. The information alleged that the incident occurred sometime in November 2000. However, during the preliminary hearing, the date of the incident became the subject of controversy. During cross-examination, defense counsel asked the victim when the assault took place and the following exchange occurred:

Victim:; I don't recall the exact date. But me and my counselor did go through it and figured out that it was somewhere-it was Christmas vacation and-but it was before Christmas came, so probably about the weekend before Christmas. Because I remember on the way to his house, we were all singing Christmas carols, and he was talking about the Jingle Bell Rock. And she helped me narrow things down like that, and-
Defense Counsel: Who is "she"?
Victim: Naney Aldrich.
Defense Counsel: So Nancy Aldrich helped you or told you-helped you find out what date this occurred?
Victim: Yes.

Based on this testimony, the prosecutor moved to amend the information to allege that the assault occurred in "November or December." The trial court allowed the amendment.

In March 2002, Defendant issued a subpoena duces tecum requesting that Dr. Aldrich produce "[alny and all files, documents and reports relating to [victim] ... regarding her therapy with you and or associates of your office." Dr. Aldrich filed a motion to quash the subpoena duces teeum, arguing that the records were protected by the psychologist-patient privilege. See § 18-90-107(1)(g), 5 C.R.S. (2002). At the hearing on the motion, the trial court recognized the existence of the psychologist-patient privilege and, rather than allow Defendant full, unrestricted access to the records, expressed its intention to review the documents in camera. It is unclear from the transcript of the hearing what the trial court intended to excise from the Petitioner's records. The court simply indicated that it planned to do a review to determine if there is "something that may be relevant." Petitioner's motion to quash was denied. Dr. Aldrich filed a petition for a rule to show cause pursuant to C.A.R. 21 and this court issued an order to show cause to the Defendant. The trial court received Dr. Ald-rich's records and placed them under seal, pending this court's decision on whether an in comera review is appropriate.

IL ORIGINAL JURISDICTION

In general, pretrial discovery orders are interlocutory in nature and not reviewable in an original proceeding. See Caldwell v. District Court, 644 P.2d 26, 30 (Colo.1982). However, this court has discretion under CAR. 21 to review whether a trial court abused its discretion in cireumstances where a remedy on appeal would prove inadequate. See Kerwin v. District Court, 649 P.2d 1086, 1088 (Colo.1982). In this case, if Petitioner is wrongfully required to disclose confidential records, the damage will occur upon disclosure, regardless of any ruling on appeal. Therefore, we find it appropriate to exercise our original jurisdiction.

III. ANALYSIS

The issue before this court is whether the trial court has discretion to review Petitioner's documents in camera absent a waiver of the psychologist-patient privilege. Petitioner argues that the documents requested by Defendant are covered by the psychologist-patient privilege and without a waiver by the privilege holder the trial court lacks discretion to review the documents. Defendant contends that the privilege is not absolute and the trial court has discretion to review Petitioner's documents to determine "which documents are covered by [the] privilege, whether the privilege is abrogated, and whether there are uses for the documents that do not implicate the privilege." Def's Resp. at 8-9.

The psychologist-patient privilege enjoys widespread acceptance, both in Colorado and throughout the country. See Jaffee v. Redmond, 518 U.S. 1, 12, 116 S.Ct. 1923, 135 L.Ed.2d 837 (1996) (noting that at the time of the opinion, all fifty states and the District of Columbia had some form of psychotherapist-patient privilege). In Colorado, the privilege was established by statute and is codified in section 13-90-107(1)(g), which provides: 5 CRS. (2002),

A licensed psychologist ... or unlicensed psychotherapist shall not be examined without the consent of such licensee's or unlicensed psychotherapist's client as to any communication made by the client to such licensee or unlicensed psychotherapist, or such licensee's or unlicensed psychotherapist's advice given thereon in the course of professional employment....

The purpose of the psychologist-patient privilege is to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused by the psychologist's disclosure of information divulged by the client during the course of treatment. Clark v. District Court, 668 P.2d 3, 8 (Colo.1983). While this is the same policy that supports the physician-patient privilege, this court has noted that the justification is even more compelling when applied to the psychologist-patient relationship. Bond v. District Court, 682 P.2d 33, 38 (Colo.1984) ("A physical ailment may be treated by a doctor whom the patient does not trust, but if a psychologist or psychiatrist does not have the patient's trust, the therapist cannot treat the patient."). The policy is especially pronounced in this case because of the sensitive nature of the treatment of sexual assault victims:

[It is of paramount importance to assure a victim of a sexual assault that all records of any treatment will remain confidential unless otherwise directed by the victim. The knowledge that the alleged assailant would be entitled to discover these otherwise privileged documents could hamper a victim's treatment progress because of her unwillingness to be completely frank and open with the psychotherapist.

People v. District Court, 719 P.2d 722, 726-27 (Colo.1986).

The psychologist-patient privilege shields more than just communications between the psychologist and the patient. See Clark, 668 P.2d at 8. Onee it attaches, the psychologist-patient privilege protects testimonial disclosures as well as pretrial discovery of files or records derived or created in the course of the treatment. Id.; Dill v. People, 927 P.2d 1315 (Colo.1996) (notes and reports from ongoing counseling sessions properly excluded under the psychologist, patient privilege).

Once the privilege has attached, the Defendant may not compel discovery unless it is waived. Clark, 668 P.2d at 9; People v. District Court, 719 P.2d at 727; People v. Tauer, 847 P.2d 259, 261 (Colo.App.1993)("Once the privilege applies, the only basis for allowing any disclosure of information is waiver by the person holding the privilege."). This conclusion is warranted based on the plain language of the statute. Clark, 668 P.2d at 10. Section 13-90-107(1)(g) provides that privileged information cannot be disclosed "without the consent" of the privilege holder. This "consent" requires an evidentiary showing that the privilege holder expressly or impliedly has given up any claim of confidentiality as to communications with the psychologist. Clark, 668 P.2d at 10.

This evidentiary showing of waiver is required before the trial court may order the documents produced for an in camera review. See People v. District Court, 719 P.2d at 727. In People v. District Court, a sexual assault victim obtained counseling from a psychotherapist. Defendant served the therapist with a subpoena duces teeum requesting production of all victim's treatment ree-ords. The trial court ordered the documents be produced for an in camera review and determination of whether the information would be relevant to either the substantive issues in the case or the credibility of the witness. Id. at 724. This court held that the trial court erred:

[The defendant is not entitled to examine the victim's post-assault psychotherapy records or to have the trial court review such records in camera on the basis that the records might possibly reveal statements of fact that differ from the anticipated testimony of the victim at trial.

Id. at 727. See also Dill, 927 P.2d at 1324 (defendant not entitled to have the trial court review psychologist's notes in camera where he was merely conducting a "fishing expedition" in search of exculpatory information that he had no reason to believe would be found).

There is no doubt in this case that Petitioner and the victim have a psychologist-patient relationship. Petitioner is a state-licensed psychologist retained to help the victim overcome the emotional consequences of the alleged assault. To be effective, the therapy requires a high degree of trust between the Petitioner and the victim. Any breach of the confidentiality surrounding the relationship would harm the victim's progress in treatment.

Therefore, the issue is whether the victim's testimony at the preliminary hearing constituted a waiver of the privilege. Defendant contends that the victim waived the protection of the privilege by testifying at the preliminary hearing. At that hearing, the victim testified that the assault occurred in December, rather than November as originally charged in the information. She explained that while she originally could not remember when the assault occurred, her discussions with Petitioner aided her in narrowing down the date.

To determine whether there was a waiver, the proper inquiry is not whether the information sought may be relevant. Johnson v. Trujillo, 977 P.2d 152, 157 (Colo.1999). Some sacrifice of relevant information is "warranted by the social importance of interests and relationships" that the privilege seeks to protect. Id. Instead, the proper inquiry is whether the victim has injected her physical or mental condition into the case as the basis of a claim or an affirmative defense. Clark, 668 P.2d at 10. Defendant bears the burden of establishing a waiver of the privilege by presenting evidence showing that the privilege holder, "by words or conduct, has expressly or impliedly forsaken his claim of confidentiality with respect to the information in question." Id. at 8; see Wesp v. Everson, 33 P.3d 191, 198 (Colo.2001) (burden of establishing waiver is on the party who seeks to overcome the privilege).

We conclude, based on the totality of the cireumstances, that the victim did not waive her privilege. First, the case is not one in which the victim is asserting a personal claim or defense in which her mental health is at issue. Second, the testimony itself did not place the substance of her treatment sessions or her post-assault mental condition in issue. Finally, the circumstances of her testimony do not reflect an intent to forego the protections of the privilege.

First, the victim is a witness in this case, not a party seeking personal relief or asserting an affirmative defense based on a claimed physical or mental condition. See Bond v. District Court, 682 P.2d 33 (Colo.1984) (privilege was waived where the privilege holder, in her suit for negligence, requested an award of damages for mental suffering and expenses for psychiatric care). The treatment sessions were conducted after the alleged assault occurred. There is no indication that the victim's post-assault mental condition is at all relevant to the prosecution's case or Defendant's defense.

Second, even though the victim is not asserting a personal claim or defense, she may waive the privilege by testifying as to the substance of her treatment sessions or by placing her post-assault mental health in issue. See People v. District Court, 719 P.2d at 725. In Mauro v. Tracy, 152 Colo. 106, 380 P.2d 570 (1963), this court considered whether the plaintiff's trial testimony waived his physician-patient privilege. Plaintiff testified regarding the extent of his injuries from an accident, the treatments prescribed by his doctors, and the amount they charged for their services. The trial court allowed defendant to call the treating physicians in order to rebut the evidence offered by plaintiff on these issues. This court affirmed, noting that the plaintiff had opened the door by his own statements regarding the details of his treatment. Id. at 571. The court of appeals considered a similar issue in People v. Silva, 782 P.2d 846 (Colo.App.1989). In that case, the victim of a sexual assault testified at trial that she suffered nightmares and anxiety as a result of the assault and that she was undergoing counseling to help her recover. Defendant sought to question the vie-tim's therapist, claiming that the victim had waived the privilege by placing the content of her treatment sessions in issue. The court held that the victim's testimony did not amount to a waiver of the privilege, finding that her testimony did not concern the substance of the communications with her therapist. Id. at 850.

We hold that the victim's testimony did not place the substance of her treatment sessions in issue. The victim testified that she could not recall exactly when the assault occurred until her sessions with Petitioner. She ultimately came to the conclusion that the assault occurred sometime in December because she remembered being on vacation from school and singing Christmas carols on the way to Defendant's house. The victim testified that Petitioner "helped" her recall some of these details. The only thing this statement reveals is the sort of therapy she was undergoing with Petitioner. The victim did not reveal any specific statements made by either party, or any particular diagnosis or treatment suggestions made by Petitioner.

Finally, we note that the cireumstances of the testimony in this case do not indicate an intent on the part of the victim to waive the protections of the privilege. The victim is a minor, called by the prosecutor to testify at a preliminary hearing. Her comments regarding her sessions with the Petitioner were made in response to a question from defense counsel during cross-examination. She did not have counsel present at the hearing to advise her of the protections of her privilege or the possibility that her testimony may waive the privilege.

An argument could be made that there has been a limited waiver with regard to the issue of whether the assault occurred in November or December and therefore, the trial court should be allowed to review Petitioner's files and records for any information relevant to that fact While this solution seems innocuous, there would still be significant harm to the psychologist-patient relationship. The relationship between therapist and patient must be confidential. The possibility that doe-uments relating to treatment may later be obtained in discovery decreases the likelihood that a victim will seek treatment, let alone be willing to reveal intimate details during treatment. The mere threat of disclosure destroys the sanctity of the psychologist-patient relationship. For this reason, we will not hastily find an implied waiver of the privilege in this type of situation.

It is true, as Defendant points out, that the source of victim's memory regarding the assault affects her credibility as a witness. Petitioner's notes and records may assist Defendant in impeaching the eredibility of the victim's testimony regarding the assault. Defendant is, of course, free to cross-examine the victim on the reliability of her memories and to point out any inconsistencies between her testimony at trial and her earlier statements to police. However, because the victim has not waived her psychologist-patient privilege, Defendant may not obtain any documents relating to victim's sessions with Petitioner.

IV. CONCLUSION

We conclude that the victim did not waive the psychologist-patient privilege by testifying at the preliminary hearing. Therefore, we hold that the trial court did not have the discretion to order Petitioner's records be disclosed during discovery, even for in camera review. Thus, we now make the rule to show cause absolute.

Justice MARTINEZ does not participate.

      . Defendant asserts that victim's testimony raises the possibility that her memories were derived as a result of hypnosis. Therefore, he contends, discovery of Petitioner's notes and records is warranted to determine whether victim's testimony is admissible as competently based on her own perception. See People v. Romero, 745 P.2d 1003, 1016 (Colo.1987) (holding that the trial court must make an individualized inquiry in each case to determine whether the trial testimony of a witness who has been hypnotized will be sufficiently reliable to qualify for admission). We find the victim's testimony insufficient to support this argument.

      . Nothing in the court order suggests that the trial judge was going to do such a limited review. The record indicates only that he intended to determine whether the records contained something "relevant."


source: Caselaw Access Project

author: Judge CASEBOLT.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gerald HAYWARD, Defendant-Appellant.
    No. 99CA1507.
    Colorado Court of Appeals, Div. V.
    Feb. 14, 2002.
    Rehearing Denied April 11, 2002.
    Certiorari Denied Oct. 15, 2002.

      Ken Salazar, Attorney General, Cynthia A. Greenfield, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Willett & Mestas, LLC, Jonathan S. Wil-lett, Denver, Colorado, for Defendant-Appellant.

       Justice COATS does not participate.

   Opinion by

Judge CASEBOLT.

Defendant, Gerald Hayward, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree assault. Defendant also appeals the sixteen-year sentence imposed on that conviction. We affirm.

The victim testified that she answered the door of her residence and encountered defendant, her estranged husband, who was at the time subject to a restraining order. According to the victim, defendant forced his way into the residence and repeatedly stabbed her with a knife.

In contrast, defendant testified that the victim answered the door brandishing a knife. According to defendant, the victim sustained accidental injuries during a struggle for control of the knife. Defendant admitted that he was aware of the restraining order that prohibited him from being at the victim's residence.

L.

Defendant first argues that the trial court erred by instructing the jury concerning the victim's right to defend herself in her dwelling in conjunction with its instructions on the affirmative defense of self-defense. We disagree.

A defendant is entitled to a properly instructed jury. People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973).

In discharging the duty to instruct the jury properly on all matters of law, the trial court may instruct the jury concerning a principle of law that is related to an issue in controversy. See People v. Gilbert, 12 P.3d 331, 340 (Colo.App.2000).

Jury instructions framed in the language of statutes are adequate and proper. People v. Dago, 179 Colo. 1, 497 P.2d 1261 (1972); People v. Burke, 937 P.2d 886 (Colo.App.1996).

Section 18-1-704(1), C.R.S.2001, defines the affirmative defense of self-defense in pertinent part as follows:

[A] person is justified in using physical foree upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of foree which he reasonably believes to be necessary for that purpose.

A reasonable belief that one is defending against the use of unlawful force is the touchstone of self-defense. See People v. Silva, 987 P.2d 909 (Colo.App.1999). The defendant must hold a reasonable belief that the appearance of danger, whether real or apparently real, justifies the actions taken. Beckett v. People, 800 P.2d 74 (Colo.1990). Self-defense under § 18-1-704(1) takes into account both the reasonable belief and the actual belief of the defendant. People v. Willner, 879 P.2d 19 (Colo.1994).

Here, the trial court correctly instructed the jury that:

It is an affirmative defense to the crime of ... assault in the second degree that the defendant used physical force upon another person:
(1) in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by the victim, and
(2) he used a degree of force which he reasonably believed to be necessary for that purpose, and
(8) he is not the initial aggressor.

The trial court further instructed the jury that defendant "was not obliged to retreat or flee to save his life, but had the right to stand his ground and use deadly force if he reasonably believed the use of such force was necessary for self-protection."

Finally, the court instructed the jury, over defendant's objection, as follows:

Any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

This latter instruction was a verbatim statement of Colorado's so-called "make my day" law, § 18-1-704.5(2), C.R.S.2001.

We perceive no error in the trial court's decision to give the latter instruction. By definition, self-defense is only available as an affirmative defense if a defendant "reasonably believes" there is use or imminent use of "unlawful physical foree" by the victim. Section 18-1-704(1). In this case, whether the victim used unlawful physical force (as asserted by defendant) turned on the question whether defendant unlawfully entered the dwelling with intent to commit a crime against her by means of physical force (as asserted by the victim).

In People v. Toler, 9 P.3d 341 (Colo.2000), the supreme court discussed, albeit in a different context, whether trespassers have a right to self-defense. The court first stated that a person who is not where he or she has "a right to be" in many instances retains the privilege to use force in self-defense irrespective of his or her status as a trespasser. However, the court nevertheless noted that, in the context of a duty to retreat, a trespasser using force in self-defense is not nee-essarily in the same position as an "innocent person." The court noted that the occupant of a dwelling may lawfully use physical force, including deadly force, against trespassers in defense of a dwelling under the "make my day" provisions. The court then stated:

Under [§§ 18-1-704.5 and 18-1-705, C.R.S.2001], a trespasser who is subjected to lawful physical force by the owner or occupant of property or premises has no privilege to use physical force in self-defense because the privilege under section 18-1-704 applies only when the defendant faces unlawful force. Thus, because trespassers face the possibility of lawful physical force by a person defending against the trespass, they are not in the same position as an otherwise innocent person or "true man" with respect to the privilege of using force in self-defense.

9 P.3d at 353 (emphasis in original).

Accordingly, and contrary to defendant's contention, whether he was legally entitled to employ force in self-defense and further to obtain an instruction at trial concerning it was dependent upon whether he made an unlawful entry into the dwelling. Because those facts were in dispute here, the instruction was properly given.

Furthermore, the question whether defendant's belief that he was defending against the use of unlawful force was objectively reasonable would turn in part on whether he knew or should have known about the vice-tim's right to use force while in her dwelling and the nature of the force she could use. Because every person is generally presumed to know the law, see Dikeman v. Charnes, 739 P.2d 870 (Colo.App.1987), it is presumed that defendant knew the victim could employ lawful force against him if he unlawfully entered her dwelling.

We reject defendant's suggestion that this instruction shifted the burden of proof by requiring him to prove that the victim's use of physical force was unlawful. The elemental instruction defining second degree assault informed the jury that the prosecution had the burden of disproving the affirmative defense of self-defense beyond a reasonable doubt. The instruction outlining the cireum-stances in which the occupant of a dwelling may lawfully use force against an intruder did not establish the existence of those circumstances or otherwise lessen the prosecution's burden of disproving defendant's assertion that the victim used unlawful physical force.

Nor are we persuaded by defendant's alternative argument that it was error to give this instruction because the court's self-defense instruction stated that the defense was unavailable if defendant was the "initial aggressor" without also explaining that an initial aggressor can act in self-defense to unlawful physical force after he or she has effectively communicated an intent to withdraw from the affray. Defendant did not object to the absence of such language. More importantly, there was no evidence presented that would have supported an instruction on withdrawal by an initial aggressor.

Moreover, the trial court did instruct the jury, as set forth above, that defendant was not obligated to retreat before defending himself. We specifically do not address the propriety of that instruction under People v. Toler, supra, in the context of this case because, even if erroneously given, the instruction inured to defendant's benefit by giving him a greater right to use self-defense than might otherwise have been available.

Defendant does not argue that further instruction concerning the use of the "make my day" instruction should have been given. Nonetheless, in our view the better practice would be for the trial court to give an instruction to the jury indicating that, in determining whether a defendant has unlawfully entered a dwelling and whether the defendant reasonably believed that unlawful force was used or imminent, the statutory "make my day" provision should be considered. See People v. Burke, supra (whether to give additional written jury instructions that properly state the law and fairly and adequately cover the issues is a matter committed to the sound discretion of the trial court).

IL.

Defendant next argues that the trial court's responses to the jury's communications concerning its deliberations had the effect of coercing a verdict. We are not persuaded.

In People v. Lewis, 676 P.2d 682, 689 (Colo.1984), the supreme court established guidelines for instructing a deadlocked jury deliberating a charge involving lesser offenses:

Before giving any additional instruction calculated to avert a mistrial due to jury disagreement over the level of offense, the court should make certain inquiries of the Jury. In making these inquiries care must be taken to avoid asking the jury how it is numerically divided and also to avoid disclosure by the jury as to the particular offenses about which a deadlock might exist. Also, any additional instruction ultimately given to the jury should be in typewritten form, should be read by the judge to the jury in open court, and then taken by the jury when it again resumes its deliberations.
The court should first ask the jury whether there is a likelihood of progress towards a unanimous verdict upon further deliberation. ... If the jury indicates that the deadlock is such that progress towards a unanimous verdict is unlikely, the court should then inquire whether the jury is divided over guilt as to any one of the offenses and nonguilt as to all offenses, or instead, whether the division centers only on the particular degree of guilt.... If ... the jury deadlock centers solely on a particular degree of guilt, rather than on the issue of guilt or nonguilt, then the court should consider an additional instruetion charging the jury to return a guilty verdict on the lesser offense as long as every essential element of the lesser offense is necessarily included in the greater offense and all jurors unanimously agree on the defendant's guilt as to either the lesser or greater offenses submitted to them for their consideration.

The decision whether to give a Lewis instruction or declare a mistrial is a matter of trial court discretion. People v. Barnard, 12 P.3d 290, 295 (Colo.App.2000).

Here, after deliberating for part of a day, the jury sent out a note to the court stating that it could not reach a verdict. Defense counsel suggested that, because lesser included offenses had been submitted to the jury, the court should inquire whether the jurors had reached a unanimous verdict as to any charge. The trial court declined to make such an inquiry and instead directed the jurors to continue deliberations.

Later that day, defense counsel again urged the court to ask the jurors whether they were deadlocked concerning the degree of defendant's guilt. The trial court again declined to make such an inquiry and discharged the jury for the weekend.

The jury resumed its deliberations the following week. After several hours, the jurors submitted a second note to the court, which stated: "If we can't agree unanimously on any of the charges does it become a no verdict by default or do we have to agree on no verdict[?]" Based on this communication, defense counsel asked the court to declare a mistrial or, alternatively, to inquire as to whether the jurors were deadlocked regarding guilt and innocence or regarding the degree of guilt. The trial court stated that it would not declare a mistrial without first determining the nature of the jurors' deadlock.

Upon inquiry from the trial court, the jury foreperson indicated that further deliberations would not likely result in a unanimous verdict, that the jurors did not disagree as to "guilt versus nonguilt," but that there was division concerning the degree of defendant's guilt. Based on the foreperson's disclosures, the trial court instructed the jury, orally and in writing, as follows:

If the jury is unable to reach a verdict solely on the particular degree of guilt of the defendant, the jury shall return a guilty verdict on the lesser offense as long as all jurors unanimously agree on the defendant's guilt as to either the lesser or greater offense submitted to you for your consideration.

Shortly thereafter, the jury returned a verdict finding defendant guilty of second degree assault, a lesser included offense of the offense charged.

We perceive no abuse of discretion in the trial court's actions. Based on the timing and substance of the jury's second communication, the trial court had reasonable grounds to defer ruling on defendant's mistrial motion in order to conduct the Lewis inquiries (inquiries which, it must be noted, defense counsel had twice before asked the court to make). Once the trial court learned that the jury was deadlocked with respect to the degree of defendant's guilt, it was appropriate for the court to submit a Lewis instruction.

IIL

Defendant contends the trial court erred by imposing an enhanced sentence pursuant to the crime of violence statute because the jury did not specifically find that he had committed a crime of violence. The record indicates otherwise.

Defendant was convicted of second degree assault in violation of § 18-3-208(1)(b), C.R.S.2001 (intentional infliction of bodily injury by means of a deadly weapon). The use of a "deadly weapon" is an element of this offense, and it is a per se crime of violence under § 18-3-208(2)(c), C.R.S.2001, requiring enhanced sentencing pursuant to § 16-11-309, C.R.S.2001 (a person convicted of a crime of violence shall be sentenced to a term of incarceration of at least the midpoint in the presumptive range, but not more than twice the maximum presumptive range sentence). See People v. Banks, 9 P.3d 1125, 1130 (Colo.2000)(because second degree assault is a per se crime of violence, the prosecution need not plead and prove a separate crime of violence under § 16-11-809(4) and (5) in order for the sentencing provisions of § 16-11-809(1) to apply).

Thus, by its verdict, the jury in this case necessarily found beyond a reasonable doubt that defendant committed second degree assault "by means of a deadly weapon."

Accordingly, we also reject defendant's argument that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 485 (2000), mandates a different result. See People v. Clifton, - P.3d -, 2001 WL 1630375 (Colo.App. No. 00CA0977, Dec. 20, 2001)(Apprendi is relevant only where a judge-made factual determination increases the maximum statutory penalty for the particular crime).

IV.

Finally, defendant argues that the trial court abused its discretion by sentencing him to sixteen years in the custody of the Department of Corrections (DOC). We disagree.

Sentencing is discretionary, and a sentence constitutes an abuse of discretion only if it is manifestly arbitrary, unreasonable, or unfair. Absent a showing that the court's wide discretion in sentencing was clearly abused, a sentencing decision will not be reversed on appeal. People v. Harding, 17 P.3d 188, 187 (Colo.App.2000).

In exercising its sentencing discretion, a trial court must consider the nature of the offense, the character and rehabilitative potential of the offender, the development of respect for the law, the deterrence of crime, and the protection of the public. See People v. Fuller, 791 P.2d 702, 708 (Colo.1990).

Second degree assault is a class four felony. Section 18-8-208(2)(b), C.R.S.2001. The presumptive sentencing range for a class four felony is normally two to six years imprisonment. Section 18-1-105(1)(a)(V)(A), C.R.S.2001. However, because second degree assault is a crime of violence, it is also an "extraordinary risk of harm" offense with an increased maximum presumptive range sentence of eight years imprisonment. Seetion 18-1-105(9.7), C.R.S.2001. Thus, under the crime of violence sentencing statute, § 16-11-8309, the maximum possible sentence in this case was sixteen years imprisonment (twice the maximum presumptive range sentence).

The trial court determined that a sixteen-year sentence was appropriate because defendant had committed an especially vicious attack in violation of a restraining order when the victim's young son was present in the house. The record supports these findings and, contrary to defendant's suggestion, also shows that the trial court gave due consideration to defendant's rehabilitative potential and his employment history. Accordingly, we perceive no abuse of discretion in the trial court's sentencing decision.

The judgment and sentence are affirmed.

Judge DAVIDSON and Judge NIETO concur.


author: Judge DAILEY. Judge ROY

text:
    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.
    Feb. 28, 2002.
    Rehearing Denied April 18, 2002.

    Certiorari Denied Oct. 15, 2002.

      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.

       Roy, J., would grant.

       Justice MARTINEZ and Justice BENDER would grant as to the following issue:
      Whether the other bad acts evidence met the requirements of People v. Spoto, 795 P.2d 1314 (Colo. 1990), and People v. Garner, 806 P.2d 366 (Colo. 1991).

   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 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 evi-denee 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, "tlhe 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-Decem-ber 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.1998)(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, 466 F.2d 1426, 1440-41 (10th Cir.1985)(neither due process nor pre-De-cember 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 cireum-stances 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.

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 § 184.21[1] (8d 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, 1836 (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 cireumstances 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 unduly interfering with counsel's ability to effectively defend defendant. Counsel did not assert this position either when the court reversed its prior ruling or at any other time during the trial itself. As indicated above, counsel clearly anticipated that this evidence might be admitted at trial, and she was familiar with the evidence and the arguments surrounding its admissibility. Additionally, when she selected a jury, it appeared that the evidence might be admitted, and she also successfully moved to preclude any reference by either counsel to the evidence during opening statements. Finally, she cross-examined the housemate about his incentives to testify for the prosecution, and she directed part of her closing argument to attacking the housemate's credibility based on those incentives.

Under these circumstances, we conclude that defendant was in no way deprived of the right to effective assistance of counsel as a result of the court's reversal of its prior order.

C. Admissibility of the Evidence

Defendant further contends that the trial court erred in admitting the housemate's testimony without (1) requiring the prosecution to articulate a precise evidentiary hypothesis for the testimony and (2) properly analyzing its admissibility under People v. Garner, supra, and People v. Spoto, 795 P.2d 1314 (Colo.1990). We disagree.

Here, the prosecution sufficiently identified its purpose for eliciting the evidence as "proof of opportunity, preparation, knowledge and identity and absence of mistake." See People v. Harding, 17 P.3d 183, 186 (Colo.App.2000)(evidence offered "to establish identity, guilty knowledge, intent, design, and motive").

Further, a trial court has substantial discretion in determining the admissibility of CRE 404(b) evidence, and we will not overturn its determination unless its ruling is manifestly arbitrary, unreasonable, or unfair. People v. Copeland, 976 P.2d 334, 337 (Colo.App.1998), aff'd, 2 P.3d 1283 (Colo.2000).

Before admitting CRE 404(b) evidence, a trial court must be satisfied by a preponderance of the evidence that the prior bad act occurred and that the defendant committed the act. See People v. Garner, supra, 806 P.2d at 373. The trial court must also determine that the evidence is offered for a proper purpose; it is logically relevant to a material issue in the case; its relevance is independent of the intermediate inference that the defendant has a bad character; and its probative value is not substantially outweighed by the danger of unfair prejudice. People v. Spoto, supra, 795 P.2d at 1318.

Here, the trial court acknowledged the applicability of the Garner-Spoto test and explicitly determined that the evidence was relevant to prove defendant's knowledge and was not unduly prejudicial. In admitting the evidence, the trial court implicitly determined it was satisfied that, by a preponderance of the evidence, the prior act occurred, and that the evidence was proffered for a proper purpose and had relevance independent of any inference of bad character. See People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001)(finding that court was satisfied, by preponderance of evidence, that defendant committed other act was implicit in court's ruling that the evidence was admissible); People v. Copeland, supra, 976 P.2d at 337 ("Having admitted the evidence, the trial court implicitly found that its probative value was not substantially outweighed by the danger of unfair prejudice.").

Further, we must ultimately reject defendant's assertion that the roommate's testimony could not have had any logical relevance independent of an inference of defendant's bad character.

In order to conviet defendant, the prosecution had to establish that she knowingly possessed the methamphetamine. See People v. Ceja, 904 P.2d 1308, 1310 (Colo.1995). Defendant argued, in both her opening statement and closing argument, that she did not know that there was methamphetamine in her bedroom dresser.

In United States v. Tomberlin, 130 F.3d 1318, 1320-21 (8th Cir.1997), the defendant admitted occupying a bedroom but claimed to have had no knowledge of the methamphetamine and related drug items found therein. In an effort to counter that defense, the prosecution requested and was allowed to introduce evidence of the defendant's prior possessions of drugs. After acknowledging that, like CRE 404(b), "Federal Rule of Evidence 404(b) permits a court to admit evidence of prior acts unless it tends to prove only a defendant's criminal disposition," the Eighth Cireuit Court of Appeals upheld the admission of the evidence. The evidence, the court said, was relevant to prove the defendant's knowledge of possession and intent to possess the methamphetamine in his bedroom. See also Pyle v. State, 314 Ark. 165, 179, 862 S.W.2d 823, 830 (1993)(where defendant testified he had no prior knowledge of the cocaine in his house, evidence that he had previously traded and used cocaine properly admitted both as rebuttal and as prior acts to show knowledge).

Here, because defendant claimed a lack of knowledge, evidence that she had previously supplied methamphetamine to her roommate tended to make more probable than not that she was indeed aware of the methamphetamine in her bedroom dresser. As such, the evidence was relevant to an issue in the case independent of an inference of bad character. See CRE 401 (defining relevant evidence); CRE 404(b)(evidence of other bad acts admissible to show, among other things, knowledge); United States v. Tomberlin, supra; Pyle v. State, supra.

Although the legitimate probative foree of the evidence may not have been compelling, we must accord the evidence its maximum probative value and minimum unfair prejudicial effect. People v. Loggins, 981 P.2d 630, 636 (Colo.App.1998). See also People v. Webster, 987 P.2d 836, 840 (Colo. App.1998)(evidence of gang activities). Doing so, we are not persuaded that it was manifestly arbitrary, unreasonable, or unfair to admit the evidence under the cireum-stances of this case.

Accordingly, because we do not conclude the trial court abused its wide range of discretion, reversal is not warranted on this ground.

D. Limiting Instructions

Defendant further contends that the limiting instructions given in connection with the housemate's testimony were deficient. We are not persuaded.

Initially, we note that, because defendant failed either to make a clear and timely objection to any of the limiting instructions or to request additional ones, reversal is not warranted unless plain error occurred. See People v. Garcia, 28 P.3d 340, 344 (Colo.2001).

Generally, a trial court should instruct the jury on the limited purposes for which CRE 404(b) evidence may be considered at the time the evidence is admitted and again in the closing charge to the jury. See People v. Garner, supra, 806 P.2d at 873-74. When a contemporaneous limiting instruction articulates the explicit purpose of the evidence, the closing charge need only remind the jury that certain evidence was admitted during trial for a limited purpose. See Hollis v. People, 630 P.2d 68, 70 (Colo.1981); People v. McKibben, 862 P.2d 991, 994 (Colo.App.1993).

Here, the trial court omitted the explicit purpose for which the evidence was admitted in the initial limiting instruction given at the end of the housemate's direct testimony. However, it rectified any potential prejudice to defendant by informing the jury following defendant's cross-examination of the housemate that it had forgotten to mention that the housemate's testimony was admitted for the limited purpose of showing that defendant acted knowingly. See People v. Marion, 941 P.2d 287, 298-94 (Colo. instruction given on rebuttal, but not earlier on cross-examination}.

The court's written instruction reminded the jury, in language tracking that of CJI-Crim. 4:02 (1983), that certain evidence had been admitted for a limited purpose. See People v. Leonard, 872 P.2d 1325, 1329 (Colo.App.1993); People v. McKibben, supra, 862 P.2d at 994. Given that only six witnesses testified at trial, and that the housemate's testimony was the only evidence admitted for a limited purpose, we conclude that the jury would have had no difficulty recalling either the evidence or the limited purpose for which it was admitted.

Consequently, we perceive no plain error resulting from the trial court's limiting instructions.

ILI. Instructional Definition of Possession

Defendant also contends that the trial court erred in refusing to instruct the jury on the definition of possession as set forth by the supreme court in People v. Villapando, 984 P.2d 51, 54 (Colo.1999). We disagree.

In Villepando, the supreme court recited the definition of "possess" given in Black's Law Dictionary 1162-63 (6th ed. 1990): "[Aletual control, care and management of the drug. [A][dlefendant 'possesses' [a] controlled substance when [the] defendant knows of [the] substance's presence, [the] substance is immediately accessible, and [the] defendant exercises 'dominion or control' over [the] substance."

Here, the trial court instructed the jury that:

"Possession," as used in these instructions, does not necessarily mean ownership, but does mean actual, physical possession, or the immediate and knowing dominion or control over the object or the thing allegedly possessed. Possession need not be exclusive, provided that each possessor, should there be more than one, actually knew of the presence of the object, or thing possessed, and exercised actual physical control or immediate, knowing dominion or control over it.

The trial court's instruction mirrors that which has been given in numerous Colorado cases. See People v. Pineda-Eriza, - P.3d --, 2001 WL 199419 (Colo.App. No. 98CA0721, Mar. 1, 2001); People v. Richardson, 8 P.3d 562, 565 (Colo.App.2000) aff'd, 25 P.3d 54 (Colo.2001); People v. Mascarenas, 972 P.2d 717, 723 (Colo.App.1998). And, after comparing the definition of "possess" used in Villepando with the definition of "possession" given here, we discern no appreciable difference between the two. Contrary to defendant's assertion, both definitions encompass the elements of immediate access to, and control and dominion over, an object.

Consequently, we discern no error in the court's instruction. See People v. Jones, 990 P.2d 1098, 1107 (Colo.App.1999)(a trial court has substantial discretion to formulate instructions so long as they are correct statements of law).

IIL Equal Protection

Lastly, defendant argues that she is denied equal protection of the laws because § 18-18-405(1)(@a), C.R.S.2001, the statute under which she was prosecuted here, punishes possession of a schedule II controlled substance more severely than § 18-18-404, C.R.S.2001, punishes use of that same substance. Again, we disagree.

In People v. Cagle, 751 P.2d 614, 620 (Colo.1988), the supreme court rejected the very argument raised by defendant, reasoning that possession could be punished more severely than use because one who has possession of a controlled substance, but does not use it, has the capability of distributing or dispensing it to others.

Defendant's reliance on People v. Villapando, supra, for a contrary conclusion, is misplaced. In Villapando, the defendant was prosecuted on both possession and use charges based solely on the fact that, while incarcerated, he tested positive for an active ingredient of marijuana. Because the defendant could not have "used" marijuana without first possessing it, the supreme court held that a person who used the drugs could not be punished more severely for possessing than using those drugs.

Unlike Villapando, but like Cagle, the present case concerns a defendant who possessed, but had not used the drugs. Like Cagle, defendant here was capable of distributing the methamphetamine to another, as she had previously done to her housemate. Thus Cagle, not Villapando, controls the outcome in this case.

Accordingly, the judgment is affirmed.

Judge NEY concurs.

Judge ROY concurs in part and dissents in part.

Judge ROY

concurring in part and dissenting in part.

While I concur with the balance of the opinion, I respectfully dissent from the majority's holding that the roommate's testimony that defendant had previously given him illegal drugs was admissible to prove that defendant later knowingly possessed the drugs in question here.

The fact that a defendant has knowingly possessed illegal drugs in the past may be intuitively relevant to whether he or she knowingly possessed the illegal drugs charged, but such a fact has no logical relevance independent of the prohibited inference that the defendant has and was acting in conformity with a bad character. See People v. Spoto, 795 P.2d 1314 (Colo.1990). Put another way, that a person had knowledge in one instance is of very marginal relevance in determining whether the person has knowledge in a subsequent instance. People v. Duncan, 38 P.3d 1180, 1184 (Colo.App.2001)(Roy, J., concurring in part and dissenting in part). Further, even if there were some modicum of logical relevance independent of the prohibited inference, its probative value would be vastly outweighed by the danger of unfair prejudice to the defendant.

Because whether defendant acted "knowingly" was the primary issue at trial, I cannot conclude the error here in admitting the roommate's testimony was harmless. Therefore, I would reverse and remand for a new trial.


author: Judge WEBB.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stanley T. COLEMAN, Defendant, Appellant.
    No. 00CA1602.
    Colorado Court of Appeals, Division IL.
    March 14, 2002.
    Certiorari Denied Oct. 7, 2002.

      Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, CO, for Defendant, Appellant.

       Justice KOURLIS would grant as to the following issue:
      Whether the court of appeals erred in concluding that a defendant found to have imported into Colorado and possessed with intent to distribute a thousand grams or more of cocaine is subject to a lower minimum sentence than a defendant merely found to have possessed with intent to distribute the same amount.

   Opinion by

Judge WEBB.

Defendant, Stanley T. Coleman, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of possession with intent to distribute 1000 grams or more of cocaine and of being a special offender. He also appeals the sixteen-year sentence imposed. We affirm the judgment, vacate the sentence, and remand for resentencing.

Defendant was a passenger on a commercial bus traveling from Los Angeles to Chicago. When the bus made its first stop in Colorado at Grand Junetion, for routine servicing, the passengers were required to leave the bus.

After the passengers had reboarded the bus for departure, three plainclothes police officers entered the bus and spoke to them. When defendant's conduct caused them to be suspicious, the officers asked for permission to search him and received his consent. Upon searching defendant, they discovered 1986.2 grams of cocaine strapped to his body. He was then arrested.

Defendant was charged with one count of possession with intent to distribute cocaine amounting to at least 1000 grams under § 18-18405(2)(a)(I), C.R.S.2001, and one count of special offender (importation) under § 18-18-407(1)(d), C.R.8.2001.

Defendant filed a motion to suppress evidence, asserting that he had been subjected to an illegal seizure. After an evidentiary hearing, the trial court denied the motion.

A jury convicted defendant of both counts. The trial court sentenced defendant to sixteen years, concluding that it had no discretion to impose a lesser sentence.

I.

Defendant first contends the trial court should have granted his motion to suppress evidence because the cocaine was obtained through a search conducted as a result of an illegal investigatory stop or seizure of the bus. We agree with the trial court that no seizure of the bus occurred and that defendant voluntarily consented to the search of his person.

In Colorado, three types of police-citizen encounters have been recognized when dealing with the Fourth Amendment's prohibition against unreasonable searches and seizures: consensual interviews, investigatory stops, and arrests. Arrests and investigatory stops are seizures. Hence, an arrest must be justified by probable cause, and an investigatory stop must be justified by a reasonable, articulable suspicion of erim-inal activity. People v. Paynter, 955 P.2d 68 (Colo.1998).

In contrast, no seizure occurs during a consensual interview where a police officer merely seeks voluntary cooperation of a citizen by asking noncoercive questions. People v. Johnson, 865 P.2d 836 (Colo.1994). A police-citizen encounter does not constitute a seizure merely because the citizen may feel social pressure to cooperate. People v. Melton, 910 P.2d 672 (Colo.1996). A consensual interview can escalate into an investigatory stop and thus implicate Fourth Amendment protections if, upon objective review of the totality of the cireumstances, a reasonable person would feel that he or she was not free to leave or disregard an officer's request for information. People v. Paynter, supra. An officer need not, however, inform the citizen that he or she is free to leave. People v. Melton, supra.

In ruling on a motion to suppress, the trial court must determine the credibility of the witnesses and the weight to be accorded the evidence. People v. Holmberg, 992 P.2d 705 (Colo.App.1999). A trial court's findings of fact are entitled to deference by a reviewing court and will not be overturned if supported by competent evidence. However, its ultimate legal conclusions are subject to de novo review. People v. Romero, 953 P.2d 550 (Colo.1998); People v. Wright, 804 P.2d 866 (Colo.1991).

Here, the trial court specifically found that the detective's testimony at the suppression hearing was more credible than defendant's testimony. We see no basis to disturb this finding. See People v. Holmberg, supra. Further, after reviewing the totality of the cireumstances, the trial court concluded that the encounter between defendant and the police was consensual. We agree.

Initially, we reject defendant's contention that the general procedure used here was an improper seizure of the bus. The officers had the bus company's consent, the procedure was used during a normal service stop, and the bus was not delayed. See United States v. Madison, 936 F.2d 90 (2d Cir.1991); United States v. Flowers, 912 F.2d 707 (4th Cir.1990).

The encounter did not become a seizure simply because it occurred within the cramped confines of a bus. See Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 889 (1991) (officers boarding a bus and questioning passengers without a basis for believing a crime had occurred was not a per se violation of the Fourth Amendment; issue requires individual assessment of circumstances and determination whether reasonable person would feel free to end encounter or decline to answer questions posed). That police officers are involved is not a sufficient show of force to render the encounter nonconsensual. See Florido v. Bostick, supra.

Here, the trial court considered that the officers left the aisles clear to allow passengers to leave; they used conversational tones and wore plainclothes; they did not use force, coercion, or nonconsensual touching; and their weapons were not shown. The court also looked at the circumstances surrounding their direct encounter with defendant, and the factors that caused them to focus attention on defendant were reasonable. A division of this court has found not to be a seizure police conduct very similar to that challenged by defendant. People v. Whitaker, 32 P.3d 511 (Colo.App.2000)(cert. granted Oct. 1, 2001).

We also reject defendant's argument that the encounter was nonconsensual because the officers failed to tell the passengers that they could refuse to interact with them. The Fourth Amendment does not per se require this specific advisement. See United States v. Little, 18 F.3d 1499 (10th Cir.1994). Whether this notification occurred is only one factor to be considered in the totality of the circumstances. See United States v. Broomfield, 201 F.3d 1270 (10th Cir.2000).

The trial court found that the passengers were told that the officers would talk to them only "if that's all right with you" and that the passengers "should all feel free to go about your business as usual." These statements are consistent with a consensual interview. See People v. Whitaker, supra.

Accordingly, reviewing the ultimate legal conclusions de novo in light of the trial court's factual findings, we conclude that the encounter between defendant and the officers was consensual. See People v. Whitaker, supra.

In so concluding, we find defendant's reliance on United States v. Washington, 151 F.3d 1354 (11th Cir.1998), and United States v. Guapi, 144 F.3d 1393 (11th Cir.1998), misplaced. These cases are distinguishable from the facts here. See United States v. Broomfield, supra. Furthermore, we are unpersuaded by the various state cases cited by defendant, as they are factually and legally distinguishable.

Finally, we reject defendant's argument that we should apply state constitutional standards, which are occasionally broader than their federal counterparts, to determine whether a consensual encounter occurred here. Defendant did not rely on state constitutional law in his motion to suppress, and the trial court did not rely on it in its ruling. Thus, we presume the trial court relied on federal law in making its ruling and therefore decline to address the applicability of state constitutional law here. See People v. (Gee, 33 P.3d 1252 (Colo.App.2001). Moreover, in resolving the types of seizure issues that defendant raises, the supreme court has not construed the state constitutional standards more broadly than the Fourth Amendment. See People v. Whitaker, supra.

We affirm the trial court's ruling denying defendant's motion to suppress.

II.

Defendant next contends that the trial court erred in concluding that it had no discretion to impose a minimum sentence of less than sixteen years. We agree.

Absent a showing that the trial court's wide latitude in sentencing was marred by a clear abuse of discretion, a sentencing decision will not be reversed on appeal. See People v. Koehler, 30 P.3d 694 (Colo.App.2000). Here, however, we resolve an issue of statutory interpretation, which is a question of law.

Defendant was convicted of both possession with intent to distribute a thousand grams or more of cocaine, a class three felony, § 18-18-405(2)(a)(I), and a special offender count for importing cocaine into Colorado, § 18-18-407(1)(d). The People argue that, because defendant possessed more than a kilogram of cocaine, under § 18-18-405(8)(a)(III), C.R.S.2001, the minimum sentence he could receive was sixteen years, which is the maximum presumptive sentence for a class three felony. Defendant argues that, under the special offender statute, § 18-18-407(1), C.R.$8.2001, he could be sentenced to eight years, which is the minimum presumptive sentence for a class two felony.

The trial court concluded that it was obligated to impose the minimum sentence under § 18-18-405(8)(a)(III), a sixteen-year term. The trial court said that it would have imposed a lesser sentence if it had had discretion to do so.

In deciding whether the trial court erred, we must examine the sentencing ranges of §§ 18-18-405(8)(a)(II1) and 18-18-407(1)(d).

Section 18-18-405(8)(a)(III) provides, in pertinent part:

Except as otherwise provided in section 18-18-4507 relating to special offenders, any person convicted pursuant to [§ 18-18-405(2)(a)] for knowingly ... possessing with intent to ... distribute ... an amount that is ...
(IIT) One thousand grams or one kilogram or more of any ... schedule I or schedule II controlled substance ... shall be sentenced to the department of corrections for a term greater than the maximum presumptive range but not more than twice the maximum presumptive range provided for such offense in section 18-1-105(1)(a).

(Emphasis supplied.) Possession with intent to distribute is a class three felony that carries a presumptive range of four to twelve years. Section 18-1-105(1)(a)(V)(A), C.R.S. 2001. However, because possession with intent to distribute is an extraordinary risk of harm crime, the presumptive range becomes four to sixteen years. Section 18-1, 105(9.7)(a), (b)(XI), C.R.8.2001.

Section 18-18-407(1)(d) provides, in pertinent part:

Upon a felony conviction under this part 4, the presence of any one or more of the following extraordinary aggravating circumstances designating the defendant a special offender shall require the court to sentence the defendant to a term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony ...
(d) The defendant unlawfully introduced, distributed, or imported into the state of Colorado any schedule I or II controlled substance....

(Emphasis supplied.)

Relying on the "[eJxeept as otherwise provided in section 18-18-407" clause of $ 18-18-405(8), defendant contends that he should have been sentenced under § 18-18-407(1), which gives the sentencing court discretion to impose "a term of at least the minimum term of years within the presumptive range for a class 2 felony." That range is eight to twenty-four years. Section 18-1-105(1)(a)(V)(A).

The People respond that this result would be absurd because a special offender who imported into Colorado-one of the enumerated "extraordinary aggravating circumstances"-with intent to distribute over a kilogram of cocaine could receive a minimum sentence of eight years, while a defendant who possessed with intent to distribute, but did not import into Colorado, more than a kilogram of cocaine would receive a minimum sentence of at least sixteen years. The People urge us to consider that both §§ 18-18-405(8)(a)(III) and 18-18-407 are sentence enhancing provisions, citing People v. Whitaker, supra; People v. Ramirez, 997 P.2d 1200 (Colo.App.1999), aff'd, 48 P.8d 611 (Colo.2001).

Our fundamental responsibility when interpreting a statute is to give effect to the General Assembly's purpose. In doing so, however, we begin with the language of the statute. If the statutory language unambiguously sets forth the legislative purpose, we end our inquiry. Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187 (Colo.1996). Conversely, if the statutory language does not clearly establish the General Assembly's purpose, or if the statute appears to conflict with other provisions, then we may determine the meaning of the statute from other factors, such as legislative history, prior law, the consequences of a given construction, and the end to be achieved by the statute. Section 2-4-208, C.R.S.2001; Martin v. People, 27 P.3d 846, 851 (Colo.2001). In no event, however, should a statute be interpreted to reach an absurd result. Reg'l Transp. Dist. v. Lopez, supra.

We assume the General Assembly intended that the entire statute be effective. Section 2-4-201(1)(b), C.R.S.2001. We "must read and consider the statutory scheme as a whole to give consistent, harmonious and sensible effect to all its parts." Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988). We must construe each provision in a comprehensive legislative scheme to further the overall legislative intent. Martin v. People, supra.

We begin with the plain language of § 18-18-405(8)(a), "Except as otherwise provided in section 18-18-407...." This phrase is both mandatory and unambiguous. A division of this court has held that the sentence enhancing provisions of § 18-18-405(8) would not apply if an accused was found to be a special offender under a former version of § 18-18-407(1). See People v. Martinez, 36 P.3d 201 (Colo.App.2001).

The version of § 18-18-407(1) that was before the court in People v. Martinez, supra, required the trial court to sentence a defendant to a term greater than the presumptive range for a class two felony, but not more than twice the maximum term for a class two felony authorized in the presumptive range. Colo. Sess. Laws 1992, ch. 71 at 361. Because the presumptive sentencing range for a class two felony was eight to twenty-four years, the sentencing range for a special offender was twenty-four years and one day to forty-eight years. See People v. Pineda-Eriza, 49 P.3d 329 (Colo.App.2001).

Under the statutory scheme as it existed then, the sentencing range under the special offender provision was always higher than that under § 18-18-405(8)(a). Thus, the construction adopted in People v. Martinez, supra, harmonized the enhancing provisions and assured that the defendant would receive the longer sentence, but not a sentence enhanced twice on the same count. People v. Pineda-Eriza, supra.

Section 18-18-407(1) was amended to its current form in 1997. The amendment reduced the sentencing range for special offenders to eight to forty-eight years. Under the current sentencing scheme, however, the minimum sentence under § 18-18-405(8)(a) will sometimes be higher than the minimum sentence under § 18-18-407(1), the anomaly noted by the People here.

Nevertheless, the plain language of § 18-18-407(1) shows that the General Assembly gave sentencing courts discretion to impose a lower minimum sentence under § 18-18-407(1) than would in some circumstances be the minimum sentence under § 18-18-405(8)(a). This result is based on simple arithmetic, not obscure language that might permit debate over the legislative purpose. Hence, we cannot depart from the plain language and look elsewhere for legislative purpose. See Reg'l Transp. Dist. v. Lopez, supra; People v. Valdes, 56 P.3d 1148 (Colo.App. 2002).

Moreover, had the legislature intended that the minimum sentence under § 18-18, 407(1) could never be less than the minimum sentence under another statute, it could have done so by amending § 18-18-407(5), C.R.S. 2001. That section provides, "Nothing in this section shall preclude the court from imposing a greater sentence set forth in any other statute." Despite the substantial reduction in the sentencing range for § 18-18, 407(1) occasioned by the 1997 amendments, the language of § 18-18-407(5) has remained discretionary.

Nor do we deem it an "absurd result" that the minimum sentence under $ 18-18-4058) can exceed the minimum for special offenders under § 18-18-407(1). We further note that most mandatory minimum sentences for felony convictions under part four of § 18-18, to which § 18-18-407(1) applies, will be lower than the minimum sentence under § 18-18-407(1).

Here, the trial court mistakenly believed it was required to impose the minimum sentence of sixteen years required under § 18-18-405(8). Thus, because the trial court did not consider the sentencing range allowed under § 18-18-407(1), we vacate the sentence and remand to the trial court for further proceedings to resentence defendant in accord with the views expressed herein.

The judgment is affirmed, the sentence is vacated, and the case remanded for further sentencing proceedings.

Judge PLANK and Judge JONES concur.


author: JUDGE STERNBERCG.

text:
    Larry W. WHITE, Plaintiff-Appellant, v Donald VAN PELT, Chairman, Colorado State Board of Parole, Defendant-Appellee.
    No. 01CA1154.
    Colorado Court of Appeals, Div. I.
    March 14, 2002.
    Rehearing Denied May 2, 2002.
    Certiorari Denied Sept. 23, 2002.

      Larry W. White, Pro Se.
    Ken Salazar, Attorney General, Joseph P. Sanchez, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee.
   Opinion by

JUDGE STERNBERCG.

Plaintiff, Larry W. White, a prison inmate, appeals the judgment denying his petition seeking mandamus relief against defendant, Donald Van Pelt, Chairman of the Colorado State Board of Parole. We affirm.

I.

Plaintiff contends that the trial court erred in denying his petition seeking mandamus relief. We do not agree.

Mandamus is an extraordinary remedy that may be used to compel performance by public officials of a plain legal duty which devolves upon them by virtue of their office or which the law enjoins as a duty resulting from the office. Board of County Comm'rs v. County Rd. Users Ass'n, 11 P.3d 432 (Colo.2000). Mandamus is appropriate upon the satisfaction of a three-part test: (1) the plaintiff must have a clear right to the relief sought; (2) the defendant must have a clear duty to perform the act requested; and (8) there must be no other available remedy. Board of County Comm'rs v. County Rd. Users Ass'n, supra.

Plaintiff, a convicted sex offender, was committed to the custody of the Department of Corrections (DOC) for an indeterminate term pursuant to § 16-13-208, C.R.S.2001. Plaintiff's petition for mandamus sought orders compelling defendant to provide him with a yearly consideration for parole and to place him at a facility where he could participate in a sex offender treatment program.

A. Parole Review

In support of his claim for annual review of his parole status, plaintiff relied on § 16-13-216(1)(a), C.R.S.2001. That statute provides as follows: "Within six months after a person is committed pursuant to section 16-13-2083, and at least once during each twelve months thereafter, the board shall review all reports, records, and information concerning said person, for the purpose of determining whether said person shall be paroled."

However, another statute, § 17-2-201(4)(a), C.R.S.2001, enacted some twenty-two years after § 16-13-216(1)(a), provides that if a person applying for parole was convicted of any offense subject to the requirements of § 16-13-208, "the board need only reconsider granting parole to such person once every three years, until the board grants such person parole or until such person is discharged pursuant to law."

Statutes upon the same subject are to be construed together and reconciled if possible, and particular statutes prevail over general, and later provisions over former. See City & County of Denver v. Board of County Comm'rs, 782 P.2d 453 (Colo.1989); see also § 24-206, C.R.S.2001 (if statutes enacted at the same or different sessions of the General Assembly are irreconcilable, the statute prevails that is latest in its effective date).

Here, § applies to persons committed pursuant to § 16-13-2083, while § 17-2-201(4)(a) applies to persons applying for parole who were convicted of any offense subject to the requirements of § 16-13-208. Thus, both statutes would appear to apply to the parole board's obligations to review plaintiff's parole eligibility. Furthermore, the statutes are in conflict because § 16-18-216(1)(a) requires a parole review every twelve months and § 17-2-201(4)(a) requires such a review only every third year.

Under these cireumstances, we agree with the trial court's conclusion that § 17-2-201(4)(a), as the later enacted statute, prevails over § 16-183-216(1)(a). See § 24-206. Consequently, we also agree with the trial court's conclusion that plaintiff failed to establish a clear right to annual parole review. See Board of County Comm'rs v. County Rd. Users Ass'n, supra.

B. Placement

Plaintiff also sought an order compelling defendant to place him in a facility where he had access to a sex offender treatment program. In support of this claim, plaintiff relied primarily on § 16-183-216(2), C.R.S.2001, which provides as follows:

The board is authorized and it is its duty to order the transfer of any person committed pursuant to section 16-18-2083, if the board deems it to be in the best interests of said person and the public, to any facility under the, jurisdiction of the department or to the department of human services subject to the availability of staff and housing. (emphasis added)

Nothing in this statute requires defendant, or the parole board, to place plaintiff in any particular facility. Rather, the statute clearly vests the parole board with discretion as to whether to order a transfer based upon the best interests of the inmate and the public.

Plaintiff's reliance on White v. Rickets, 684 P.2d 239 (Colo.1984), is misplaced. In White, an inmate alleged that the parole board had ordered that he be transferred to another facility pursuant to § 16-18-216(2), but the DOC had taken no action to comply with that order. The supreme court coneluded that the inmate's allegations stated a claim for mandamus relief and remanded for consideration of the claim. ©

Unlike the circumstances in White, here, the parole board has not ordered plaintiff transferred. Moreover, as stated above, defendant has no clear duty to order such a transfer under § 16-18-2162).

In sum, we conclude that plaintiff failed to establish either that he had a clear right to the relief sought or that defendant had a clear duty to perform the act requested.

IL.

Plaintiff also contends that the trial court's summary judgment ruling was "premature" and did not give him an opportunity to conduct discovery. We are not persuaded.

First, the issues facing the trial court were predominantly, if not entirely, legal rather than factual. Furthermore, had plaintiff wished to postpone any summary judgment ruling by the trial court, he was required to file an affidavit pursuant to C.R.C.P. 56(f). See Card v. Blakeslee, 937 P.2d 846 (Colo.App.1996). Plaintiff filed no such affidavit.

Under these cireumstances, we perceive no error or due process violation in the timing of the trial court's ruling.

We have considered plaintiffs remaining contentions and have determined that they are not persuasive or improperly raised in this appeal.

The judgment is affirmed.

Judge NIETO and Justice KIRSHBAUM, concur.

       Sitting by assignment of the Chief Justice under the provisions of Colo. Const. art. VI, § 5(3), and C.R.S.2001, § 24-51-1105.