People v. Leverton
2017 COA 34
| Colo. Ct. App. | 2017Background
- Police found a car reported stolen a few days after the victim left it running; Leverton was a front-seat passenger and claimed the car belonged to his girlfriend, which the victim denied.
- Officers discovered small baggies (suspected drugs) in the car; after transporting Leverton, an officer searched the seat area and found a meth pipe with residue.
- Leverton was charged in two separate filings: a petty paraphernalia charge and a felony theft-by-receiving charge; the prosecution moved to amend the felony complaint to add the paraphernalia count and dismissed the separate petty case prior to trial.
- Leverton attempted to enter a guilty plea to the paraphernalia charge to avoid joinder; the trial court refused the plea, joined the counts, and tried both offenses together; Leverton was convicted of both offenses.
- At trial two back-seat occupants testified they had no memory of the events; the prosecutor impeached them by eliciting their prior inconsistent oral statements to police, which were admitted through the arresting officers.
- Leverton appealed, arguing (1) improper joinder/double jeopardy from rejecting his plea and joining counts, (2) erroneous admission of prior inconsistent statements and Confrontation Clause violation, and (3) insufficient evidence for convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court err by refusing Leverton's guilty plea on the petty paraphernalia charge and joining that charge with the felony theft, violating mandatory joinder statute? | People: The amendment effectively joined the counts before jeopardy attached; joinder is permitted and prevents successive prosecutions. | Leverton: Court should have accepted guilty plea first; joining after plea request violated mandatory joinder and double jeopardy. | Court: No error. Amendment was effectively a timely joinder (Jeffrey governs); refusal to accept plea was within discretion to prevent manipulation of joinder statute. |
| Did joinder/plea refusal violate Double Jeopardy? | People: Double jeopardy had not attached because plea was not accepted and jury not sworn. | Leverton: Joining after plea attempt created double jeopardy concerns. | Court: No double jeopardy violation; protections attach only after plea acceptance or jury sworn. |
| Were prior inconsistent statements admissible under CRE 613 and §16-10-201 when witnesses claimed no memory? | People: Witness claims of non-memory equal denials; prior statements admissible for impeachment and as substantive evidence where statute permits. | Leverton: Witnesses’ lack of memory made them unavailable; prior statements inadmissible and violated Confrontation Clause. | Court: Admissible. Memory-denial is impeachment ground (Baca); statutory and rule requirements met. |
| Did admission of those prior statements violate the Sixth Amendment Confrontation Clause? | People: Witnesses appeared at trial and were subject to cross-examination; Crawford and pre-Crawford precedents allow admission when declarant testifies despite memory loss. | Leverton: Crawford’s language means a witness with memory loss cannot "defend or explain" and thus is unavailable. | Court: No Confrontation violation. Precedents (Green, Fensterer, Owens) permit admission when declarant testifies and is cross-examined; mere memory loss does not render witness unavailable absent extraordinary total memory loss. |
Key Cases Cited
- Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981) (permitting prosecutor to add counts arising from same episode before jeopardy attaches)
- United States v. Owens, 484 U.S. 554 (U.S. 1988) (witness memory loss does not automatically render declarant unavailable for Confrontation Clause purposes)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial statements barred unless declarant available or prior cross-examined)
- California v. Green, 399 U.S. 149 (U.S. 1970) (presence of declarant to testify and be cross-examined avoids Confrontation Clause problem)
- Delaware v. Fensterer, 474 U.S. 15 (U.S. 1985) (Confrontation Clause does not guarantee freedom from testimony marred by memory loss)
- People v. Baca, 633 P.2d 528 (Colo. App. 1981) (a witness’s claim of no memory is tantamount to a denial and permits impeachment with prior statement)