People v. Gee
2015 COA 151
Colo. Ct. App.2015Background
- Victim was shot five times during a masked home invasion; three occupants fled in an SUV. Police arrested Gee in the SUV and recovered a 9mm used in the shooting, masks, clothing matching the victim’s description, and Gee’s wallet; GSR found on Gee’s hands and face.
- Codefendant Wilson pled guilty to aggravated robbery and testified that Gee and another planned and participated in the robbery and shooting; Ray was tried separately and convicted.
- Gee was convicted by a jury of first‑degree assault (deadly weapon), first‑degree burglary (crime of violence), and aggravated robbery (deadly weapon). He was adjudged a habitual criminal based on two prior felonies and sentenced to 48 years on each count, to be served consecutively (aggregate 144 years).
- At trial the prosecution introduced testimony about Gee’s failure to appear and his subsequent flight to Michigan; defense objected as undisclosed CRE 404(b) evidence.
- Post‑sentence, Gee moved for a new trial based on affidavits from Ray and an investigator asserting exculpatory statements by codefendants; the court denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of flight evidence | Flight is relevant to show consciousness of guilt and admissible | Flight evidence was evidence of another crime (failure to appear/bail violation) and thus subject to CRE 404(b) notice rules | Evidence of Gee’s flight was res gestae/contemporaneously linked or otherwise relevant to show consciousness of guilt and not subject to CRE 404(b); admission not an abuse of discretion |
| Habitual‑criminal predicate | Prior conspiracy conviction (adult plea) counts as a predicate conviction occurring within 10 years | Predicate conviction stems largely from conduct while a juvenile; invoking Eighth Amendment (Graham) contends de facto LWOP for juvenile conduct is unconstitutional | Predicate conviction qualified because plea admitted acts after Gee turned 18; Eighth Amendment challenge unpreserved and, in any event, inapplicable here |
| Request for extended proportionality review | (People) Sentences are supported by grave/serious offenses and habitual/crime‑of‑violence rules | (Gee) Sentences are grossly disproportionate; legislative reclassification of drug offenses undermines grave/serious designation and warrants extended review | Abbreviated proportionality review sufficed; each 48‑year sentence is supported by at least one grave/serious offense and not grossly disproportionate, so extended review not required |
| Motion for new trial — newly discovered evidence | (People) Postconviction statements of codefendants are not newly discovered if defendant knew or could have obtained that testimony; even if new, statements unlikely to produce acquittal given physical and eyewitness evidence | Affidavits from Ray and investigator asserting that Gee did not exit the vehicle and was innocent constitute newly discovered, material evidence warranting a new trial | Trial court did not abuse discretion: the statements were not newly discovered (codefendants’ testimony was potentially available) and, even if new, would probably not lead to acquittal given masks, GSR, gun recovery, wallet, and eyewitnesses |
Key Cases Cited
- People v. Perry, 68 P.3d 472 (Colo. App. 2002) (flight evidence relevance)
- People v. Summitt, 132 P.3d 320 (Colo. 2006) (consciousness of guilt inference from flight)
- Wilkinson v. People, 460 P.2d 774 (Colo. 1969) (circumstances of arrest/avoidance relevant to guilt)
- People v. Quintana, 882 P.2d 1366 (Colo. 1994) (res gestae doctrine and linkage to charged offense)
- People v. Deroulet, 48 P.3d 520 (Colo. 2002) (abbreviated proportionality review for habitual sentences)
- People v. Gaskins, 923 P.2d 292 (Colo. App. 1996) (proportionality review principles)
- People v. Mershon, 874 P.2d 1025 (Colo. 1994) (Eighth Amendment gross disproportionality standard)
- Graham v. Florida, 560 U.S. 48 (U.S. 2010) (juvenile offenders and life without parole prohibition for nonhomicide offenses)
- United States v. Broce, 488 U.S. 563 (U.S. 1989) (effect of plea admitting charged acts)
- People v. Gutierrez, 622 P.2d 547 (Colo. 1981) (new trial standards for newly discovered codefendant testimony)