The People of the State of Colorado, Plaintiff-Appellee, v. Danielle Palmer, Defendant-Appellant.
Court of Appeals No. 16CA0215
COLORADO COURT OF APPEALS
March 22, 2018
2018COA38
JUDGE WELLING; Román, J., concurs; Dunn, J., specially concurs
Arapahoe County District Court No. 15CR202; Honorable Donald W. Marshall, Judge
SUMMARY
March 22, 2018
2018COA38
No. 16CA0215, People v. Palmer — Criminal Procedure — Indictment and Information — Amendment of Information
A division of the court of appeals considers whether
The special concurrence, on the other hand, concludes that because a crime of violence designation neither adds a new charge nor changes the essence of the charged offense, the amendment is one of form, not substance, and as such, the amendment may be granted during the course of trial, but only if doing so would not prejudice the defendant. But because the special concurrence concludes that the amendment was prejudicial, it reaches the same conclusion as the majority, albeit for a different reason.
Finally, the division rejects the defendant‘s contention that the trial court erred in denying her motion for a mistrial based upon a discovery violation that came to light during the course of trial.
Announced March 22, 2018
Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶ 2 The amended information alleged that Palmer committed first degree arson by means of a deadly weapon. By virtue of the amendment, Palmer faced a longer prison sentence if convicted.
¶ 3 Also, during trial it came to light that the People had failed to disclose the reports of two fire investigators. This discovery violation was discovered after one of the investigators had testified but before the other had. Palmer moved for a mistrial. The trial court denied the motion, but imposed lesser sanctions.
¶ 4 On appeal, Palmer contends that the trial court erred by granting the People‘s motion to amend the information during the course of trial and by denying her motion for a mistrial. We agree with her first contention, but disagree with her second. With respect to the first issue, we conclude that the addition of the crime of violence designation was a substantive amendment to the information and, therefore, pursuant to
I. Background
¶ 5 When Palmer found out that the man she had been dating was having sex with another woman, she set fire to a bag of his things outside the front door of his apartment. The fire spread from the bag, and soon the entire apartment complex was ablaze. As a result of the fire, Palmer was charged with five counts of attempted first degree murder and one count of first degree arson.
¶ 6 The jury acquitted Palmer of attempted murder but convicted her of first degree arson and the lesser nonincluded offense of fourth degree arson. The jury also found that first degree arson was a crime of violence because Palmer used a deadly weapon — a lighter and lighter fluid. The trial court sentenced Palmer to sixteen
II. Analysis
¶ 7 Palmer raises two arguments on appeal. First, she contends that the trial court abused its discretion by allowing the prosecutor to amend the information. Second, she argues that the trial court should have granted her motion for a mistrial because the prosecution failed to timely disclose two fire investigators’ reports. We agree with her first contention but disagree with her second.
A. Amendment to Information
¶ 8 The attempted murder and first degree arson offenses were not originally charged as crimes of violence. The day before trial, however, the prosecutor moved to amend the information to designate each offense as a crime of violence. The trial court initially denied the motion. But on the first day of trial — after the jury had been sworn, opening statements had been delivered, and three witnesses had testified — the court sua sponte reversed its
¶ 9 Subject to an exception not applicable here, to convict a defendant for a crime of violence, the People must allege, in a separate count of the information, that they are pursuing the charge as a crime of violence.2
¶ 10 Under
[t]he Court may permit an information to be amended as to form or substance at any time prior to trial; the court may permit it to be amended as to form at any time before the verdict or finding if no additional or different
offense is charged and if substantial rights of the defendant are not prejudiced.
(Emphasis added.)
¶ 11 Palmer argues that the amendment to add the crime of violence designation was one of substance and therefore must have been made before trial. We agree.
¶ 12
¶ 13 The resolution of Palmer‘s argument requires us to interpret
¶ 15 Because trial was underway when the court sua sponte reconsidered its earlier decision and granted the People‘s motion to amend the information, the amendment runs afoul of
¶ 16 The original information charged Palmer with arson as a class 3 felony. See
¶ 17 First, the amendment changed Palmer‘s sentencing range so that a DOC sentence was mandatory and both the minimum and maximum terms of the incarceration were higher after the amendment than before. As a class 3 felony, a first degree arson conviction carries a presumptive sentence of four to twelve years.
¶ 18 Once a defendant is convicted of a crime of violence, he or she faces a sentence of at least the midpoint, but no more than twice the maximum, of the presumptive range.
¶ 19 The increase in Palmer‘s potential sentence is reminiscent of People v. Manyik, 2016 COA 42. In that case, the defendant faced a charge of aggravated robbery under subsection (1)(d) of the robbery statute,
¶ 20 The Manyik division concluded that the trial court abused its discretion in granting the prosecution‘s motion to amend because the amended charge subjected the defendant to mandatory sentencing that the original charge did not. Manyik, ¶ 49. Therefore, the division concluded the amendment was substantive.
¶ 21 The second way the amendment changed the essence of the first degree arson charge was that it required proof of an additional element — namely, the use of a deadly weapon. Before the amendment, Palmer was aware that the prosecutor needed to prove that she knowingly set fire to, burned, or caused to be burned a building or occupied structure of another without his consent.
¶ 22 Because the amendment changed the essence of the first degree arson charge, we cannot say that the original information adequately advised Palmer of the charges that she ultimately had to defend against at trial. Going into trial, she was on notice that she needed to defend against a charge of first degree arson, but once the information was amended she had to defend against a charge that, while similar, carried an increased penalty and included an additional element. Those changes were substantive changes to the information that needed to have been made, if at all, before trial.
B. Prosecution‘s Disclosures
¶ 24 At trial, the prosecution intended on calling two fire investigators, Lieutenant R and Lieutenant S. After Lieutenant R testified, but before Lieutenant S did, the prosecution discovered and promptly disclosed two previously undisclosed reports from the lieutenants. Palmer moved for a mistrial based on the prosecutor‘s lack of timely disclosure. The trial court determined that the prosecutor‘s failure to disclose the reports was inadvertent, as neither witness had made the People aware of the existence of the reports before trial. Although the trial court denied the motion for a mistrial, it imposed two remedial sanctions. First, the trial court precluded the People from calling Lieutenant S as a witness. Second, the trial court ordered that Palmer could be permitted to
¶ 25 To remedy a discovery violation, the trial court should impose the least severe sanction that ensures compliance with the discovery rules and protects a defendant‘s right to due process. People v. Acosta, 2014 COA 82, ¶ 12. Here, the trial court determined that precluding Lieutenant S from testifying and allowing further questioning of Lieutenant R would cure any prejudice to Palmer. When a prosecutor‘s discovery violation was inadvertent, allowing a defendant to recall a witness can be an appropriate remedy. See People v. Lafferty, 9 P.3d 1132, 1136 (Colo. App. 1999) (holding that discovery violation for failing to disclose entire police report was remedied by allowing the defendant to recall the prosecution‘s witnesses).
¶ 26 We conclude that the trial court acted within its discretion in fashioning its remedy for the discovery violation and we discern no abuse of discretion in the trial court‘s denial of Palmer‘s motion for a mistrial.
¶ 27 Because we conclude that the trial court committed only one error, we do not address Palmer‘s contention of cumulative error. People v. Munsey, 232 P.3d 113, 124 (Colo. App. 2009) (stating that reversal under cumulative error standard requires “[n]umerous” irregularities at trial (quoting Oaks v. People, 150 Colo. 64, 66, 371 P.2d 443, 446 (1962))).
IV. Conclusion
¶ 28 Palmer‘s sentence is reversed, and we remand the case to the trial court for resentencing. The judgment is affirmed in all other respects.
JUDGE ROMÁN concurs.
JUDGE DUNN specially concurs
¶ 29 After learning her boyfriend was far from faithful, Danielle Palmer poured lighter fluid on a bag of his clothes and set them on fire outside his apartment. The fire blossomed, placing several residents in danger. The prosecution charged Palmer with five counts of attempted first degree murder and one count of first degree arson.
¶ 30 The day before trial, the prosecution moved to add a violent crime sentence enhancer for Palmer‘s use of a deadly weapon, in this case a lighter and lighter fluid, while committing the charged crimes. We know that the trial court said no, but because the hearing transcript is not in the record, we don‘t know exactly why. Yet, at the end of the first day of trial, the court decided on its own to revisit its ruling. In response, Palmer argued the amendment would injure her “substantial right[s],” while the prosecution maintained it was simply an amendment to form because the sentence enhancer did “not charg[e] an additional offense.” The trial court “reverse[d] [its] ruling” and allowed the prosecution to add the sentence enhancer.
¶ 32 The purpose of an information is to “advise the defendant of the nature of the charges, to enable the defendant to prepare a defense, and to protect the defendant from further prosecution for the same offense.” People v. Metcalf, 926 P.2d 133, 139 (Colo. App. 1996); accord People v. Williams, 984 P.2d 56, 60 (Colo. 1999). A trial court may permit the amendment of the information as to “form or substance” at any time before trial.
¶ 33 To determine whether an amendment is one of form or substance, the court looks to the charge alleged in the information and the circumstances surrounding the case. Cervantes, 715 P.2d
¶ 34 We know, of course, that a violent crime sentence enhancer “is not a substantive charge.” Lehnert v. People, 244 P.3d 1180, 1185 (Colo. 2010). And it “does not create a separate substantive offense.” People v. Rodriguez, 914 P.2d 230, 277 (Colo. 1996); accord Brown v. Dist. Court, 194 Colo. 45, 47, 569 P.2d 1390, 1391 (1977); see also People v. Martinez, 43 Colo. App. 419, 421, 608 P.2d 359, 360 (1979) (concluding that an amendment adding a violent crime sentencing count does “not charge a new, different, or additional offense not alleged in the original complaint“). Because the addition of the violent crime enhancer did not charge an additional or different offense, it cannot be a substantive amendment unless it changed the essence of the charged arson.1 See Manzanares, 942 P.2d at 1242.
¶ 36 Still, for two reasons, my colleagues reach the opposite conclusion. First, they reason that because Palmer faced an increased penalty, the sentence enhancer changed the essence of the arson charge. But the enhanced sentence here does not change the essence of the crime charged. After all, the enhancement
¶ 37 This leads me to People v. Manyik, 2016 COA 42. In that case, the prosecution initially charged the defendant with aggravated robbery under
¶ 38 My colleagues’ second reason, that the amendment “required proof of an additional element — namely, the use of a deadly weapon,” conflates the elements of the sentence enhancer with the elements of arson. Supra ¶ 21. The “special findings” for a violent crime sentence enhancer — that is, the finding that Palmer used a deadly weapon during the commission of the arson — “relate only to
¶ 39 But that does not end the inquiry. An amendment to form still must not prejudice a defendant‘s substantial rights. See Cervantes, 715 P.2d at 786. And here the amendment did just that. The day after the trial court denied the prosecution‘s request to add the sentence enhancer, Palmer presented her opening statement, defending on the theory that she had only intended to destroy her boyfriend‘s clothes. Consistent with her defense, Palmer admitted that she “took lighter fluid . . . put that lighter fluid” on her boyfriend‘s clothes and “lit [them] on fire.” So, she continued, while
¶ 40 Palmer thus admitted that she used a deadly weapon in setting the fire, proving the facts necessary to enhance her sentence. But at the time of her admission, she did not face an enhanced sentence that carried with it mandatory jail time.
¶ 41 And once the court reversed itself, Palmer, of course, could not retreat from this position.
¶ 42 I can‘t conclude that Palmer would have so freely admitted these facts had the trial court allowed the amendment before trial. Cf. Metcalf, 926 P.2d at 140 (concluding that a form amendment did not prejudice the defendant when it did not “require a different defense strategy from the one the defendant had chosen under the initial information“). By allowing the amendment, her admissions had the added effect of relieving the prosecution from its burden of proving the facts necessary to enhance her sentence. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (concluding that the prosecution must prove to the jury beyond a reasonable doubt any fact that increases a defendant‘s sentence beyond the sentencing range).
¶ 44 So I agree with the majority that Palmer‘s enhanced arson sentence cannot stand, but for a different reason. I otherwise agree with the opinion.