2019 COA 105
Colo. Ct. App.2019Background
- Defendant Thomas Flynn was convicted by a jury of menacing, vehicular eluding, reckless endangerment, failure to stop at a red light, and speeding arising from an incident in which a driver in a Cadillac allegedly pointed a pistol at the victim.
- The victim provided the Cadillac’s temporary tag and later identified Flynn in a photo array; police could not locate the Cadillac or the gun and tied the temporary tag to a Buick registered to Flynn’s father.
- One week before trial and again on the first day, Flynn (through appointed counsel) asked for a continuance so he could retain private counsel (naming an attorney) but had not taken steps to secure representation or had counsel enter an appearance.
- At trial a detective testified he had driven by Flynn’s house looking for the Cadillac and had checked DMV records; those investigatory notes were not in police reports and were not disclosed pretrial but were elicited at trial when the detective testified.
- During extensive voir dire the trial judge used hypotheticals and examples in explaining presumption of innocence and reasonable doubt; the court read the standard definitions contemporaneously and again as final jury instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of continuance to retain counsel of choice violated Sixth Amendment | People: trial court properly exercised discretion because no showing that named counsel was available and request was last-minute and tactical | Flynn: denial deprived him of right to counsel of choice; he had identified an attorney by name and sought more time to retain him | Held: Affirmed — Brown factors unnecessary where defendant had not taken steps to retain counsel; Travis controls; denial not an abuse of discretion |
| Whether prosecution’s nondisclosure of detective’s observations and DMV check violated Brady | People: evidence was not materially exculpatory and, in any event, jury heard the DMV search testimony at trial so no prejudice | Flynn: suppression of investigatory observations and DMV search deprived defense of usable exculpatory material that could have been exploited pretrial | Held: Suppression occurred but surveillance observations were of unclear value; DMV search was minimally exculpatory but not material because jury heard the testimony; no Brady violation requiring reversal |
| Whether trial court’s voir dire comments lowered burden of proof (reasonable doubt) | People: extended examples did not alter the correct standard; court read and later instructed with the model definitions | Flynn: judge’s hypotheticals and explanations risked lowering the prosecution’s burden and diminishing presumption of innocence | Held: No reversible error — comments did not lower burden; caution reiterated against supplemental explanations which risk structural error |
| Standard for applying Brown continuance factors vs. Travis | People: Brown applicable when replacement counsel identifiable and some steps taken; Travis limits Brown where request is speculative | Flynn: argued Brown should have guided the analysis | Held: Brown inapplicable because defendant’s intent to hire was aspirational; Travis governs and trial court need not make Brown findings |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecution must disclose material, exculpatory evidence)
- Kyles v. Whitley, 514 U.S. 419 (U.S. 1995) (suppression occurs irrespective of bad faith)
- United States v. Bagley, 473 U.S. 667 (U.S. 1985) (materiality standard: reasonable probability undermining confidence in outcome)
- Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (instruction lowering burden of proof is structural error)
- Holland v. United States, 348 U.S. 121 (U.S. 1954) (defining limits of attempts to clarify reasonable doubt)
- People v. Crow, 789 P.2d 1104 (Colo. 1990) (continuance motions reviewed for abuse of discretion)
- People v. Munoz, 240 P.3d 311 (Colo. App. 2009) (requirements for valid reasonable-doubt instruction)