Crim. P. 8

History

Source: (a) amended December 6, 1990, and effective March 1, 1991; entire rule amended and adopted September 12, 2002, effective January 1, 2003. ANNOTATION I. General Consideration. II. Joinder of Offenses. III. Joinder of Defendants. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Colorado Felony Sentencing’’, see 11 Colo. Law. 1478 (1982). Applied in People v. Mendoza, 190 Colo. 519, 549 P.2d 766 (1976); People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976); Brutcher v. District Court, 195 Colo. 579, 580 P.2d 396 (1978); Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); People v. Holder, 632 P.2d 607 (Colo. App. 1981). II. JOINDER OF OFFENSES. When joinder of offenses permitted. This rule provides that two or more offenses may be charged in the same information, in a separate count for each offense, if the offenses charged are based upon the same act or transaction, or on two or more acts or transactions connected together and that they were properly charged in separate counts for each offense. Ruark v. People, 158 Colo. 287, 406 P.2d 91 (1965). Where the acts involved were committed at the same time or in immediate succession and at the same place, they arose out of the same criminal episode; therefore, it is appropriate to include the separate counts in a single information. People v. McGregor, 635 P.2d 912 (Colo. App. 1981). Purpose of joinder is to prevent vexatious prosecution and harassment of a defendant by a district attorney who initiates successive pros- ecutions for crimes which stem from the same criminal episode. Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979). ‘‘Single prosecution’’ is a proceeding from the commencement of the criminal action until further prosecution is barred. Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979). Section 8(a) applies only where prosecu- tion aware of other offenses. Section (a) of this rule and § 18-1-408 (2) apply only where the prosecution is aware of other offenses at the time the original action is commenced. People v. Scott, 615 P.2d 680 (Colo. 1980). Jeopardy must attach before there is ‘‘sub- sequent prosecution’’. The proscription con- tained in section (a) is against bringing a ‘‘sub- sequent prosecution’’ based on charges known to the prosecutor at the time he commenced the initial prosecution, and there is no ‘‘subsequent prosecution’’ until jeopardy attaches to the ini- tial prosecution. People v. Freeman, 196 Colo. 238, 583 P.2d 921 (1978). Guilty plea to related charge bars subse- quent prosecution. Section (a) and § 18-1-408 (2), bar the prosecution of a defendant for two pending charges arising out of the same crimi- nal episode when the defendant has pleaded guilty and has been sentenced for a third related charge. Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979). Effect of dismissal on attachment of jeop- ardy. Where dismissal of a count occurred prior to trial and the dismissal had nothing to do with the defendant’s criminal liability, jeopardy does not attach. People v. Freeman, 196 Colo. 238, 583 P.2d 921 (1978). In joinder of offenses of similar character, prejudice may develop because defendant’s statements concerning his involvement in one count would not ordinarily be admissible at a separate trial of the second count, since it is related to the other count only as a crime of a similar nature. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976). Nearness in time, proximity of place and unity of scheme are not indispensable pre- requisites to joinder under the ‘‘same criminal episode’’ standard, although multiple offenses characterized by all three components would certainly qualify for joinder under section (a). Corr v. District Court, 661 P.2d 668 (Colo. 1983). Law of joinder and severance dependent on facts in each case. The law relating to join- der and severance and that which permits con- solidation of charges depends on the facts in each particular case. Hunter v. District Court, 193 Colo. 308, 565 P.2d 942 (1977). Where joinder permitted in sanity trial. Joinder of a charge of forcible rape with an unrelated deviate sexual intercourse charge committed on a different female on a different date for purposes of trial on the sanity issue was not error. People v. Renfrow, 193 Colo. 131, 564 P.2d 411 (1977). But accessory charge barred if not in- cluded in first information. The prosecution is precluded from pursuing a second prosecution where the accessory charge could have been included in the first information. People v. Riddick, 626 P.2d 641 (Colo. 1981). Joinder of offenses permitted. People v. Trujillo, 181 Colo. 350, 509 P.2d 794 (1973). Where two assault counts arose out of the same continuous sequence of events closely re- lated in time and distance, the two counts were ‘‘based on two acts connected together’’, and the trial judge was not obligated to sever them at trial. People v. Walker, 189 Colo. 545, 542 P.2d 1283 (1975). Joinder not sanctioned. Where the alleged victims of the crimes are the same, but the same persons are not charged in each offense and material differences exist as to the date of each offense and the factual transactions specified in each count, joinder under such circumstances is not sanctioned by Crim. P. 8(a). Norman v. People, 178 Colo. 190, 496 P.2d 1029 (1972), overruled on other grounds in People v. Wash- ington, 2022 COA 62, 517 P.3d 706. To be duplicitous, information must join two or more distinct and separate offenses in the same count of an indictment or information. Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957); Leyba v. People, 174 Colo. 1, 481 P.2d 417 (1971). Count is not bad for duplicity where it sets forth several overt acts in pursuance of the principal act charged, or where it alleges several acts done by the same person which are only successive stages in the progress of a criminal enterprise, constituting as a whole only one offense, although either, when done alone, might be an offense. Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957). Rule authorizes the joinder of offenses based on a series of acts arising from the same criminal episode. Joinder of offenses committed at different times and places is permissible pro- vided they are part of a schematic whole. People v. Taylor, 804 P.2d 196 (Colo. App. 1990). Sexual assault offenses may be joined if the evidence of each offense would be admissible in separate trials. People v. Williams, 899 P.2d 306 (Colo. App. 1995). In assessing whether two cases are of a ‘‘same or similar character’’, courts have considered factors such as the elements of the offenses at issue; the temporal proximity of the underlying acts; the likelihood that the evidence will overlap; the physical location of the acts; the modus operandi of the crimes; and the iden- tity of the victims. Bondsteel v. People, 2019 CO 26, 439 P.3d 847. Regardless of whether two shoplifting inci- dents were part of a common scheme or de- sign, they were ‘‘of the same or similar charac- ter’’ under section (a)(2). People v. Buell, 2017 COA 148, 442 P.3d 961, aff’d, 2019 CO 27, 439 P.3d 857. Section (a)(2) does not always require the evidence of respective incidents to be cross- admissible were there to be separate trials. To the contrary, when the cases are of the same or similar character, joinder under section (a)(2) is proper regardless of whether the evidence would be cross-admissible in separate trials. Bondsteel v. People, 2019 CO 26, 439 P.3d 847. An analysis under C.R.E. 404(b) is not required by the ‘‘same or similar character’’ criterion of section (a)(2). People v. Buell, 2017 COA 148, 442 P.3d 961, aff’d, 2019 CO 27, 439 P.3d 857. Separate offenses may be joined that are committed at different times and places if they constitute part of a schematic whole. The incident at the grocery store and subse- quent shopping spree were a continuous crimi- nal episode and there was no prejudice to the defendant in trying the counts together. People v. Smith, 121 P.3d 243 (Colo. App. 2005). Misjoinder of offenses under section (a)(2) is subject to harmless error review. People v. Washington, 2022 COA 62, 517 P.3d 706 (hold- ing that People v. Novotny, 2014 CO 18, 320 P.3d 1194, overruled Norman v. People, 178 Colo. 190, 496 P.2d 1029 (1972), annotated above, to the extent Norman held joinder error requires automatic reversal). Erroneous joinder of offenses was harmless where the evidence supporting the charges was overwhelming; the trial court instructed the jury to consider the evidence and law applicable to each count separately; and the jury acquitted defendant of the most serious charge. People v. Washington, 2022 COA 62, 517 P.3d 706. Trial court did not abuse discretion by denying motion to sever when the attempted manslaughter charge (having unprotected inter- course while HIV positive) arose from the same act as the sexual assault charges. People v. Dembry, 91 P.3d 431 (Colo. App. 2003). A defendant does not impliedly waive his right to rely upon the statute and rule by entering a plea of guilty in a county court case with knowledge that the district court case is pending. People v. Robinson, 774 P.2d 884 (Colo. 1989). But the right to compulsory joinder may be waived by raising the issue after jeopardy attaches in the second prosecution. People v. Wilson, 819 P.2d 510 (Colo. App. 1991); People v. Carey, 198 P.3d 1223 (Colo. App. 2008). A defendant may not oppose a prosecu- tion’s failed motion to join two cases and then later move to dismiss the second case because the court did not join the cases origi- nally. A defendant waives his or her joinder rights when he or she objects to a joinder mo- tion and the court denies the motion. People v. Marshall, 2014 COA 42, 348 P.3d 462. III. JOINDER OF DEFENDANTS. Law reviews. For article, ‘‘Pronouncements of the U. S. Supreme Court Relating to the Criminal Law Field: 1985-1986’’, which dis- cusses a case relating to misjoinder of defen- dants, see 15 Colo. Law. 1615 (1986). By consenting to a joint trial defendant waives any right to urge a later objection thereto based solely on the joinder. Pineda v. People, 152 Colo. 545, 383 P.2d 793 (1963). Considerations in granting motion for sev- erance. When deciding whether to grant a mo- tion for severance, the trial court should con- sider whether evidence inadmissible against one defendant will be considered against the other defendant, despite the issuance by the trial court of the proper admonitory instructions. An addi- tional consideration is whether the defendants plan to offer antagonistic defenses. People v. Gonzales, 198 Colo. 450, 601 P.2d 1366 (1979). Severance required if joinder prevents fair trial. When joint prosecution would prevent a fair trial of one or more of the defendants, the trial court must grant a motion for severance. People v. Magoon, 645 P.2d 286 (Colo. App. 1982). Motion for severance is addressed to the sound discretion of trial court. People v. Magoon, 645 P.2d 286 (Colo. App. 1982). And not disturbed on appeal absent preju- dice. A ruling on a motion for severance will not be disturbed on appeal in the absence of a showing that the denial of such motion preju- diced a defendant. People v. Magoon, 645 P.2d 286 (Colo. App. 1982). Court did not err in joining two cases be- cause evidence from each case would be ad- missible in the other case as common plan or scheme evidence. People v. George, 2017 COA 75, 488 P.3d 1159.