v. Palmer, 2018 COA 38

Danielle Palmer set fire to a bag of her boyfriend’s clothes outside his apartment; the fire spread and damaged the building.
She was charged with five counts of attempted first-degree murder and one count of first-degree arson; jury acquitted on murder counts and convicted of first-degree arson and fourth-degree arson (lesser included).
The original information did not allege the arson as a crime of violence; the prosecutor moved to add a crime-of-violence designation (deadly-weapon finding) the day before trial and renewed during trial.
After the jury was sworn and several witnesses had testified, the trial court reversed an earlier denial and allowed the People to amend the information to add the crime-of-violence designation; the jury found the deadly-weapon special finding and the court imposed a mandatory enhanced sentence.
During trial the People failed to disclose two fire-investigator reports; one investigator had already testified when the reports were disclosed; the court precluded the second investigator from testifying and allowed the defendant to recall the first (which she declined).
On appeal the court held the amendment to add the crime-of-violence designation was a substantive amendment made after trial began (prohibited by Crim. P. 7(e)) and reversed the enhanced sentence; the court affirmed denial of the mistrial and remanded for resentencing without the crime-of-violence designation.

Issue	Plaintiff's Argument (People)	Defendant's Argument (Palmer)	Held
Whether Crim. P. 7(e) permitted amendment during trial to add crime-of-violence designation	Amendment was one of form (not a new offense); may be allowed during trial if no prejudice	Amendment was substantive because it added an element and increased sentencing exposure; must be made before trial	Court: Amendment was substantive — added an element (use of deadly weapon) and increased mandatory sentencing range; granting it after trial began was an abuse of discretion; enhanced sentence vacated and remanded for resentencing without designation
Whether denial of mistrial for late disclosure of two fire-investigator reports was error	Failure to disclose was inadvertent and remedied by excluding second investigator and permitting recall of first; mistrial not required	Late disclosure prejudiced defense and warranted mistrial	Court: Trial court did not abuse its discretion; lesser sanctions (preclusion and option to recall) were adequate, so denial of mistrial affirmed

People v. Butler, 224 P.3d 380 (Colo. App. 2009) (standard for reviewing amendments to information and trial-court discretion)
People v. Manzanares, 942 P.2d 1235 (Colo. App. 1996) (amendment that changes the essence of the charge is substantive)
Lehnert v. People, 244 P.3d 1180 (Colo. 2010) (violent-crime sentencing provision applies only after conviction of the underlying offense)
People v. Metcalf, 926 P.2d 133 (Colo. App. 1996) (purpose of information: notify defendant and enable defense preparation)
Brown v. District Court, 569 P.2d 1390 (Colo. 1977) (sentence-enhancer findings relate to sentencing and do not create a separate substantive offense)
People v. Lafferty, 9 P.3d 1132 (Colo. App. 2000) (recall of witnesses can be an appropriate remedy for inadvertent discovery violations)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that increase a defendant’s sentence beyond the statutory maximum must be proved to a jury beyond a reasonable doubt)