2015 COA 153
Colo. Ct. App.2015Background
- Casey Griego attempted an armed robbery of a liquor store, exchanged gunfire with the clerk, was shot while fleeing, and later implicated Richard Arthur Baca as the planner/instigator.
- Griego testified that Baca proposed the robbery, pressured him, provided a bandana and gun, and helped plan the offense; Baca claimed Griego acted as part of a gang initiation (“did his dirt”).
- A jury convicted Baca of attempted second-degree murder, conspiracy to commit second-degree murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery, but acquitted him on two crime-of-violence special-verdict counts (finding no deadly-weapon use/possession/threat).
- At trial the court made a brief voir dire analogy about reasonable doubt, later twice giving the correct reasonable-doubt instruction (including written instructions).
- Defense sought to admit a recorded jail telephone call in which Griego allegedly admitted “doing his dirt”; the court excluded the recording for lack of proper authentication foundation.
- At sentencing the court applied both the crime-of-violence and the extraordinary-risk provisions, calculating a 10–32 year range and imposing an 18-year concurrent sentence; Baca appealed convictions and the extraordinary-risk application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court's voir dire analogy to reasonable doubt lowered the prosecution's burden | Analogy harmless because court later read and provided correct reasonable-doubt instruction | Analogy improperly diluted beyond a reasonable doubt and required reversal as structural error | No plain error: isolated voir dire comments cured by two correct oral instructions and written jury instructions; conviction affirmed |
| Whether the recorded jail call should have been admitted | Recording not properly authenticated; proponent failed foundation | Recording probative to show gang-initiation defense and impeach Griego | No abuse of discretion: investigator lacked percipient knowledge or personal knowledge of jail recording system; exclusion affirmed |
| Whether attempted second-degree murder and related conspiracy automatically qualify as "extraordinary risk" crimes | Those per se crimes of violence necessarily qualify for extraordinary-risk sentencing | Extraordinary-risk applies only to crimes of violence "as defined in" §18-1.3-406(2)(a) (i.e., where statutory criteria like weapon use or serious bodily injury are proven) | Court erred in applying extraordinary-risk to Baca because statutory criteria were not proven; but error was not plain because trial court reasonably relied on controlling division precedent (Laurson); sentence affirmed |
Key Cases Cited
- People v. Banks, 9 P.3d 1125 (Colo. 2000) (interprets "as defined in" to limit extraordinary-risk crimes to those meeting §18-1.3-406(2)(a) criteria)
- People v. Laurson, 70 P.3d 564 (Colo. App. 2003) (division held attempted second-degree murder qualifies as extraordinary-risk crime)
- Terry v. People, 977 P.2d 145 (Colo. 1999) (conspiracy/attempt to per se crime of violence treated as per se crime for sentencing purposes)
- People v. Miller, 113 P.3d 743 (Colo. 2005) (plain-error standard for jury-instruction errors)
- Copeland v. People, 2 P.3d 1283 (Colo. 2000) (presumption that jury follows court's instructions)
- Alonzi v. People, 597 P.2d 560 (Colo. 1979) (foundational requirements for admitting recorded telephone calls)