2014 COA 60
Colo. Ct. App.2014Background
- Jerry Lee Rhea was charged with 10 theft counts, 10 conspiracy-to-commit-theft counts, and 3 counts of attempting to influence a public official based on alleged overbilling (~$250,000) to Adams County. A former employee and an audit supported the prosecution's case.
- Before trial Rhea moved to dismiss multiplicious theft/conspiracy counts; the trial court allowed all counts to proceed and indicated multiplicity could be addressed at sentencing.
- After a four‑week trial the jury convicted Rhea on all counts. At sentencing the court merged the multiple theft convictions into one theft conviction and the multiple conspiracy convictions into one conspiracy conviction, and sentenced on one of each plus three attempt-to-influence counts.
- On post‑trial motion the trial court found some prosecutorial misconduct (e.g., references to "under the table" payments) but deemed it harmless; it rejected other misconduct claims.
- Rhea appealed, arguing (1) allowing multiplicitous counts to be tried violated double jeopardy and due process (risk of compromise verdict and prejudicial evidence), and (2) prosecutorial misconduct required acquittal or new trial. The court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Multiplicity / Double Jeopardy | State: trial court may allow multiple counts to go to jury and cure any double jeopardy by merger at sentencing. | Rhea: permitting multiplicitous counts to be tried violated double jeopardy and merger at sentencing did not cure the violation. | Multiplicity existed (ten theft + ten conspiracy counts within 6 months) but merger at sentencing cured double jeopardy; appellate review of whether to compel election is for abuse of discretion. |
| Multiplicity / Due Process (compromise verdict) | State: because jury convicted on all counts and would have had same evidence, no due process violation. | Rhea: multiplicitous counts risk compromise verdict and unfair presentation of evidence; trial should have required election. | No due process violation; jury convicted on every count, instructions required separate consideration, and same evidence would have been admissible on a single charge. |
| Multiplicity / Evidentiary Spillover | State: same body of evidence would have been presented on one count; no prejudice. | Rhea: presentation and framing of evidence across many counts caused unfair focus and prejudice. | No reversal; because identical evidence would have been available, merger was adequate remedy and no harmful spillover shown. |
| Prosecutorial misconduct | State: challenged remarks were within allowable argument or harmless; trial court did not abuse discretion. | Rhea: pervasive references to "public corruption," improper closing arguments ("under the table," "hired gun," taxpayer appeals, prosecutor's opinion) deprived him of fair trial. | Court found some misconduct (e.g., "under the table") but concluded errors were harmless or not plain; trial court did not abuse discretion in denying new trial. |
Key Cases Cited
- Lucero v. People, 272 P.3d 1063 (Colo. 2012) (unit-of-prosecution/multiplicity and merger remedy under Colorado law)
- Quintano v. People, 105 P.3d 585 (Colo. 2005) (definition and danger of multiplicity; multiple punishments concern)
- Roberts v. People, 203 P.3d 513 (Colo. 2009) (statutory six‑month unit of prosecution for theft)
- Ball v. United States, 470 U.S. 856 (1985) (discussion that multiplicity errors may be resolved at sentencing; potential risk of compromise verdict)
- United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997) (trial court discretion to require prosecution to elect among multiplicitous counts)
- United States v. Clark, 184 F.3d 858 (D.C. Cir. 1999) (spillover/evidence analysis when multiplicitous counts tried)
- Wend v. People, 235 P.3d 1089 (Colo. 2010) (standard and framework for reviewing prosecutorial misconduct claims)