The PEOPLE of the State of Colorado, Plaintiff–Appellee v. Jerry Lee RHEA, Defendant–Appellant.
349 P.3d 280
Colo. Ct. App.2014Background
- Jerry Lee Rhea was tried for alleged overbilling of Adams County for road work: initially charged with 10 counts of theft, 10 counts of conspiracy to commit theft, and 3 counts of attempting to influence a public official; jury convicted on all counts.
- Prosecution relied on a former employee's testimony (that Rhea instructed invoice falsification) and an audit confirming overbilling.
- Before and during trial Rhea moved to dismiss/move against multiplicity; the trial court allowed all counts to go to the jury but indicated multiplicity could be resolved at sentencing.
- After conviction the trial court found some prosecutorial misconduct but deemed it harmless, merged multiplicitous theft and conspiracy convictions, and sentenced Rhea on one theft count, one conspiracy count, and three attempt-to-influence counts.
- Rhea appealed arguing (1) double jeopardy and due process violations from trying multiplicitous counts to the jury (and that merger at sentencing did not cure the harm), and (2) prejudicial prosecutorial misconduct requiring acquittal or new trial.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Rhea) | Held |
|---|---|---|---|
| Whether trying multiplicitous theft/conspiracy counts to the jury violated Double Jeopardy | Trial court may exercise discretion to let multiplicitous counts be tried; any multiplicity can be cured at sentencing by merger | Allowing multiplicitous counts to be tried violated double jeopardy and merger at sentencing does not cure the constitutional harm | Merger at sentencing cured any double jeopardy concern; no need to reverse where only one punishment imposed |
| Whether multiplicitous counts deprived Rhea of due process by encouraging a compromise verdict or exposing jury to extra prejudicial evidence | The same body of evidence would have been presented even on single counts; jury instructions required separate consideration; jury convicted on all counts, reducing compromise- verdict risk | Multiplicity increased risk of compromise verdict and biased presentation of evidence | No due process violation: jury convicted every count, same evidence would have been available, and instructions presume jurors followed them |
| Whether the trial court abused its discretion by not forcing the prosecution to elect counts pre-trial | Trial court has discretion whether to require election; appellate review of that decision is for abuse of discretion | Election should have been required where multiplicity was clear to avoid prejudice at trial | Appellate court adopts federal approach: denial of pretrial election is reviewed for abuse of discretion; here merger cured prejudice so no reversible abuse shown |
| Whether prosecutorial misconduct during voir dire and closing warranted a new trial | Most challenged remarks were either not preserved or, taken in context, not plain error; one improper insinuation ("under the table") was harmless given the whole trial | Prosecutor repeatedly invoked "public corruption," appealed to taxpayers, attacked defense expert, and expressed personal belief—cumulative misconduct requiring reversal | Court found some improper remarks (including "under the table") but held errors harmless or not plain error in context; denial of motion for new trial not an abuse of discretion |
Key Cases Cited
- Lucero v. People, 272 P.3d 1063 (Colo. 2012) (addressing multiplicitous theft convictions and merger)
- Roberts v. People, 203 P.3d 513 (Colo. 2009) (unit-of-prosecution rule for theft statute requiring grouping thefts within six months)
- Quintano v. People, 105 P.3d 585 (Colo. 2005) (defining multiplicity and multiple punishments concern)
- Ball v. United States, 470 U.S. 856 (1985) (discussion that error from multiplicitous charges may be addressed at sentencing)
- United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997) (trial court discretion whether to require prosecution to elect between multiplicitous counts)
- United States v. Josephberg, 459 F.3d 350 (2d Cir. 2006) (double jeopardy does not bar simultaneous prosecutions at guilt phase if only one punishment is imposed)