2014 COA 59M
Colo. Ct. App.2014Background
- In 2002 Curren was charged with two counts of first-degree murder, two counts of felony murder, two counts of conspiracy to commit first-degree murder, two counts of conspiracy to commit aggravated robbery, and two counts of aggravated robbery; conspiracy charges were dismissed.
- Curren fled to Mexico before trial, was returned for trial, did not testify, and was convicted on two felony murder counts and one aggravated robbery; he received two life-without-parole sentences and a 24-year sentence with parole to run concurrently.
- Curren appealed and a division affirmed; postconviction court later vacated convictions and granted a new trial due to an actual conflict of interest by Curren’s first trial attorney; the prosecution appealed.
- On remand, Curren faced two counts of first-degree murder and one aggravated robbery; a speedy-trial dismissal motion was denied and the second trial began on April 18, 2011, with Curren testifying.
- During the second trial, the prosecution called Curren’s former trial attorney as a rebuttal witness to address Curren’s testimony about counsel’s preparation and advice; Curren was convicted of accessory after the fact to first-degree murder and sentenced to 12 years; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the speedy-trial six-month period toll during the prosecution’s appeal? | Curren: tolling does not apply; appeal is not interlocutory under statute. | Curren: the appeal tolled the period under Gallegos criteria; otherwise speedy trial rights violated. | Yes; appeal tolled the period per Gallegos criteria. |
| Did the two-year delay in trial violate the federal or state speedy-trial rights? | Curren: delay presumptively prejudicial and unconstitutional. | Curren: delay justified by prosecution’s appeal and lack of prejudice. | No constitutional violation; delay not prejudicial overall. |
| Did Curtis advisement or its sufficiency affect the validity of Curren’s trial rights on direct appeal? | Curren: Curtis advisement was deficient because it didn’t warn about consequences tied to flight and prior counsel testimony. | Curren: challenge is not subject to direct appeal review. | Curtis issue not reviewed on direct appeal. |
| Was it reversible error to allow prior trial counsel to testify against Curren at the second trial? | Curren: violates silence, counsel, and attorney-client privilege; violates Williams framework and RPC 3.8(e). | Curren: rebuttal testimony appropriately opened the door and privilege was waived. | No reversible error; testimony proper as rebuttal; privilege waived; Williams not applicable. |
Key Cases Cited
- Barker v. Wingo, 407 U.S. 514 (1972) (speedy-trial balancing test)
- People v. McMurtry, 122 P.3d 237 (Colo. 2005) (statutory speedy-trial protection aligns with constitutional right)
- Gallegos v. People, 946 P.2d 946 (Colo. 1997) (interlocutory tolling of speedy-trial period under 18-1-405(6)(b))
- Williams v. Dist. Court, 700 P.2d 549 (Colo. 1985) (prosecutor-subpoena of defense counsel; considerations differ for prior counsel)
- People v. Koolbeck, 703 P.2d 673 (Colo. App. 1985) (materiality/essentiality of testimony for speedy-trial purpose)
- People v. Trujillo, 144 P.3d 539 (Colo. 2006) (attorney-client privilege limits and waiver principles)
- People v. Dunlap, 124 P.3d 780 (Colo. App. 2004) (opening the door to rebuttal evidence)
- People v. Welsh, 80 P.3d 296 (Colo. 2003) (definition of rebuttal evidence)
- Curren II, 228 P.3d 253 (Colo. App. 2009) (earlier postconviction ruling on new trial; appellate discussion)