2015 COA 165
Colo. Ct. App.2015Background
- Defendant James Bondsteel was tried jointly on two sets of charges: assaults on two hikers on Signal Mountain Trail (knife attack; moves clothing; attempted sexual assault and second-degree kidnapping counts) and multiple motorcycle-stop incidents (approaching women, sometimes at gunpoint, taking phones and ordering removal/exposure of clothing).
- Trial court granted the prosecution's pretrial Crim. P. 13 joinder over defense objection; defendant did not renew the objection or move to sever at trial.
- Pretrial lineup identifications by the two Signal Mountain victims identified Bondsteel; lineups used camouflage and head coverings leaving only eyes exposed.
- Jury convicted on multiple counts including second-degree kidnapping as to both hiking victims; acquitted on several other counts. Defendant challenged joinder, suppression, juror for-cause denial, absence of limiting instruction, sufficiency of kidnapping evidence, and prosecutors’ DNA statements on appeal.
- Court affirmed most rulings but reversed and vacated the second-degree kidnapping conviction and sentence for K.D. (insufficient evidence of asportation) and remanded to correct the mittimus.
Issues
| Issue | Bondsteel's Argument | State's Argument | Held |
|---|---|---|---|
| Preservation and joinder (Crim. P. 13) | Pretrial objection preserved misjoinder claim; no need to renew at trial | Must renew objection or move to sever at trial; failure forfeits/waives issue | Forfeited under Aalbu rationale; court reviews merits and finds no abuse of discretion in joinder |
| Merits of joinder / 404(b) admissibility | Motorcycle-case evidence prejudicial and not admissible in separate trials | Evidence admissible under CRE 404(b) to show motive, intent, modus operandi | 404(b) four-part Spoto test satisfied; joinder not an abuse of discretion |
| Standing for as-applied constitutional challenge to Crim. P. 8/13/14 (Walker rule) | Requiring a “convincing showing” to sever chills rights to silence/testimony; rule unconstitutional as applied | No severance sought at trial, so no enforcement; challenge not ripe and defendant lacks standing | No standing; claim not ripe because defendant never sought severance |
| Suppression of pretrial identifications | Lineups were unduly suggestive (eye-color disparity) and should be suppressed | Lineups were not impermissibly suggestive; identifications reliable under Bernal factors | Lineups not impermissibly suggestive; identifications reliable; suppression properly denied |
| Juror challenge for cause (denial re: J.H.) | Court erred in denying for-cause challenge | Denial was discretionary and any error harmless; defense used peremptory | Even if abuse, defendant failed to show prejudice under outcome-determinative test; no relief |
| Failure to give limiting instruction sua sponte on 404(b) evidence | Court should have instructed jury sua sponte on limited purposes | No statutory duty; defense chose strategy and may decline limiting instruction | Not reversible plain error; trial court not required to issue limiting instruction sua sponte |
| Sufficiency of second-degree kidnapping (asportation) for K.D. and N.D. | Movements were minimal; asportation not shown | Evidence (esp. N.D.) showed movement or increased risk of harm | Conviction reversed for K.D. (insufficient asportation); conviction as to N.D. affirmed (movement/increased risk supported verdict) |
| Prosecutorial statements re: DNA (closing) | Prosecutors misstated DNA as a definitive “match” and said DNA was “his” — prejudicial | Statements reflected expert testimony and reasonable inferences; defense strategically declined to object | Plain-error review declined for many "match" statements (strategy); remaining DNA statements had evidentiary support; no reversal |
Key Cases Cited
- People v. Barker, 501 P.2d 1041 (Colo. 1972) (defendant must renew severance objection at trial or risk waiver)
- People v. Aalbu, 696 P.2d 796 (Colo. 1985) (renewal requirement for severance to allow reconsideration in light of trial evidence)
- People v. Gross, 39 P.3d 1279 (Colo. App. 2001) (declined here; had held pretrial objection to consolidation could preserve misjoinder without renewal)
- People v. Harlan, 8 P.3d 448 (Colo. 2000) (asportation requires seizing and carrying; courts may consider whether movement substantially increased risk of harm)
- People v. Owens, 97 P.3d 227 (Colo. App. 2004) (short movements can support kidnapping conviction when they substantially increase risk of harm)
- People v. Rogers, 220 P.3d 931 (Colo. App. 2008) ("seizing and carrying" may be described as any movement, however short)
- People v. Jones, 311 P.3d 274 (Colo. 2013) (404(b) evidence admissible to show common plan/scheme; degree of similarity varies by purpose)
- People v. Bernal, 44 P.3d 184 (Colo. 2002) (two-step test for suggestive pretrial identification and reliability factors)
- People v. Spoto, 795 P.2d 1314 (Colo. 1990) (four-part test for admissibility of other-act evidence under CRE 404(b))