2019 CO 27
Colo.2019Background
- Francis Buell committed two shoplifting incidents in Greeley ~2.5 months apart: one at Sears (jewelry) and one at Safeway (steaks); in both incidents he hid merchandise on his person and, when confronted by loss-prevention agents, produced a knife and tried to flee or struck an agent.
- Prosecutor charged Buell in two separate informations (Sears: aggravated robbery, theft; Safeway: attempted aggravated robbery, second-degree assault, theft) and moved to consolidate under Colo. Crim. P. 13; trial court granted consolidation over Buell’s objection.
- At trial Buell admitted the thefts but disputed that force/threats used during the takings supported aggravated robbery/attempted aggravated robbery convictions; jury convicted on all counts and Buell appealed.
- The court of appeals affirmed, holding the incidents were "of the same or similar character" under Crim. P. 8(a)(2) and that cross-admissibility analysis under CRE 404(b) is not required for that prong; this Court granted certiorari.
- The Colorado Supreme Court affirmed: joinder under the "same or similar character" prong does not require cross-admissibility, the two incidents were sufficiently similar, and Buell failed to show prejudice under Crim. P. 14.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consolidation under Crim. P.13 requires cross-admissibility of evidence under CRE 404(b) for joinder under Crim. P.8(a)(2) | State: Consolidation proper because offenses were similar and evidence was cross-admissible; joinder permitted under Crim. P.8(a)(2) | Buell: Joinder requires that evidence from each incident be admissible in separate trials of the other (i.e., cross-admissibility) | No; the "same or similar character" prong of Crim. P.8(a)(2) does not require CRE 404(b) cross-admissibility; consolidation was proper because incidents were of same/similar character |
| Whether consolidation prejudiced defendant under Crim. P.14 | State: No actual prejudice; evidence of each incident would have been admissible in separate trials and facts were undisputed | Buell: Consolidation was prejudicial because evidence would not be cross-admissible and could lead jury to impermissible character inference | No prejudice found: court concluded evidence would be cross-admissible in any event and the facts (theft and knife use) were largely undisputed, so jury could separate issues |
Key Cases Cited
- Brown v. Dist. Court, 591 P.2d 99 (Colo. 1979) (abuse-of-discretion standard for consolidation)
- People v. Angel, 277 P.3d 231 (Colo. 2012) (interpretation of procedural rules using ordinary meaning)
- People v. Spoto, 795 P.2d 1314 (Colo. 1990) (four-part test for admission of other-acts evidence under CRE 404(b))
- People v. Gross, 39 P.3d 1279 (Colo. App. 2001) (no prejudice where evidence would be admissible in separate trials)