[Copyrighted Material Omitted]
Lincoln County District Court No. 08CR31. Honorable P. Douglas Tallman, Judge.
John W. Suthers, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Furman and Dunn, JJ., concur.
[¶1] Defendant, Jordan Paul Stroud, appeals the trial court's judgment of conviction entered on jury verdicts finding him guilty of two counts of child abuse resulting in serious bodily injury and two counts of child abuse resulting in bodily injury. We affirm.
[¶2] This appeal arises from allegations of child abuse concerning Stroud's eleven-week-old daughter, R.S., and his stepchildren, C.H. and S.H. In 2007, the biological father of C.H. and S.H. took his children to the hospital on two occasions after he noticed injuries on their bodies which included rashes, bruises, and a swollen contusion on the head of one child. A year later, R.S. was admitted to the hospital after she was discovered with injuries that resulted in bleeding on both sides of her brain and in the back of her eye, a twisting fracture to her arm, and three rib fractures. At the time of the children's alleged injuries, Stroud shared caretaking responsibility with his common-law wife, N.D., and her ex-husband C.H.
[¶3] Because these injuries arose during Stroud's supervision of the children, the prosecution charged him with two counts of child abuse resulting in serious bodily injury and two counts of child abuse resulting in bodily injury. The jury convicted him as charged, and the trial court imposed two concurrent twenty-four-month jail sentences for his misdemeanor convictions, and two concurrent sixteen-year prison sentences for his felony convictions, which the court ordered to be served consecutively to the misdemeanor jail sentences.
II. Denial of Funds for Defense Expert
[¶4] Stroud contends that the trial court abused its discretion when it denied his motion for funds to hire an expert even though he was indigent and represented pro bono by a private attorney. We agree that the trial court abused its discretion, but conclude the error was harmless beyond a reasonable doubt.
A. Standard of Review
[¶5] Although an indigent defendant is entitled to the basic tools of an adequate defense, a trial court has discretion to grant a motion for support services to a defendant. People v. Orozco, 210 P.3d 472, 475 (Colo.App. 2009); see also People v. Tafoya, 703 P.2d 663, 667 (Colo.App. 1985) (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971)). A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law. Orozco, 210 P.3d at 475; see also People v. Muniz, 190 P.3d 774, 781 (Colo.App. 2008). As relevant here, a trial court erroneously denies a defendant's request for support services if the defendant shows that the requested services were reasonable, necessary, and helpful to the defense. Orozco, 210 P.3d at 475.
[¶6] Because a court's erroneous denial of a defendant's request for support services is subject to constitutional harmless error review, we reverse a defendant's conviction unless the error is harmless beyond a reasonable doubt. See id. at 476. An error is not harmless beyond a reasonable doubt " [i]f there is a reasonable possibility that the defendant could have been prejudiced." Id. (quoting People v. Trujillo, 114 P.3d 27, 32 (Colo.App. 2004)). Alternatively, an error is harmless beyond a reasonable doubt " if there is no reasonable possibility that it affected the guilty verdict." Id. (quoting Arteaga-Lansaw v. People, 159 P.3d 107, 110 (Colo. 2007)).
[¶7] Under section 18-1-403, C.R.S. 2013, " all indigent persons who are charged with or held for the commission of a crime are entitled to legal representation and supporting services at state expense, to the extent and in the manner provided for in articles 1 and 2 of title 21, C.R.S." In People v. Cardenas, 62 P.3d 621, 622-23 (Colo. 2002), the supreme court held that section 18-1-403 required a defendant to be represented by a public defender or an alternate defense counsel if he or she wanted the state to pay the costs of his or her attorney and support services.
[¶8] However, as of July 2008, Chief Justice Directive (CJD) 04-04 expanded the circumstances in which support services may be provided. As relevant here, CJD 04-04 § IV(D)(1) allows the Judicial Department to pay for a defendant's expert witness fees if
a) The defendant is indigent and proceed[s] pro se;
b) The defendant is indigent and receive[s] pro bono, private counsel; or
c) The defendant is receiving private counsel but becomes indigent during the course of the case, and the court has determined that the defendant lacks sufficient funds to pay for court costs, and that it would be too disruptive to the proceedings to assign the Public Defender or Alternate Defense Counsel to the case.
[¶9] In Orozco, a division of this court relied on the CJD to conclude that a trial court has discretion to determine whether a defendant represented by private counsel is entitled to receive support services at the state's expense. See 210 P.3d at 476. Thus, in applying CJD 04-04 § IV(D)(1)(c), the division held that the trial court abused its discretion in denying the defendant's request for funding to hire an expert because the defendant had become indigent during the course of his case and demonstrated that he had insufficient funds to hire an expert. Id.
[¶10] Here, Stroud's attorney filed a motion for appointment of an expert witness at state expense, and the court held a hearing on this matter. In both his motion and at the hearing, defense counsel informed the court that Stroud was indigent due to his incarceration and that he was previously found indigent in two other district court cases. Defense counsel stated that when he entered his appearance, Stroud's wife had agreed to provide funding for an expert witness to review the medical evidence and to determine whether R.S.'s injuries were the result of nonaccidental trauma. However, after the couple separated, Stroud lacked funding to obtain an expert. Therefore, though defense counsel stated he was " willing to proceed with his representation of [Stroud] pro bono," he requested the court to appoint an expert witness at the state's expense to assure Stroud a fair trial.
[¶11] Despite evidence of Stroud's indigence and the need for an expert witness, the trial court denied his motion for funding of an expert. The court explained that it lacked authority to provide state funding without an initial determination of indigence by the Public Defender's Office. Thus, the court instructed Stroud to obtain a public defender or a court-appointed counsel to receive court assistance in hiring an expert. Nevertheless, Stroud elected to proceed with his pro bono counsel and go to trial without an expert.
[¶12] We conclude that the trial court abused its discretion in denying Stroud's motion. Although neither party brought CJD
04-04 to the court's attention, that CJD authorized the court to provide funds for ...