This case is subject to revision upon final publication.
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Adams County District Court No. 97CR3075. Honorable Chris Melonakis, Judge. Honorable Thomas R. Ensor, Judge. Honorable John T. Bryan, Judge.
John W. Suthers, Attorney General, Christine C. Brady, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant.
[¶1] Defendant, John Estle Curren, appeals the judgment of conviction entered on a jury verdict finding him guilty of accessory to murder in the first degree. He asserts that the trial court violated his statutory and constitutional rights to speedy trial and that the court erred by allowing the prosecution to call his former trial attorney to testify against him. We disagree and affirm.
[¶2] In 2002, defendant was charged with two counts of first degree murder after deliberation, two counts of felony murder, two counts of conspiracy to commit first degree murder, two counts of conspiracy to commit aggravated robbery, and two counts of aggravated robbery. The prosecution eventually dismissed the conspiracy charges.
[¶3] Before trial, defendant fled to Mexico. He was apprehended and was returned for trial. Following trial, during which defendant did not testify, the jury convicted him on the two felony murder counts and one count of aggravated robbery. The trial court sentenced him to two consecutive sentences of life in prison without parole, and a twenty-four-year prison sentence with five years of mandatory parole to run concurrently with the other sentences imposed.
Defendant appealed the judgment and a division of this court affirmed. People v. Curren, (Colo. App. No. 02CA1144, June 2, 2005) (not published pursuant to C.A.R. 35(f)) ( Curren I ).
Defendant then filed a Crim. P. 35(c) motion. On April 2, 2009, the postconviction court vacated defendant's convictions and granted him a new trial, concluding that his trial attorney had represented him while having an actual conflict of interest. On April 27, 2009, the prosecution filed a notice of appeal challenging the postconviction court's order.
On May 7, 2009, defendant asserted his right to a speedy trial and demanded that the six-month speedy trial period begin running on that date. The postconviction court concluded that the prosecution's appeal would toll the speedy trial period.
On appeal, a division of this court affirmed the postconviction court's order granting a new trial. See People v. Curren, 228 P.3d 253, 257 (Colo. App. 2009) ( Curren II ). The mandate issued on April 23, 2010.
On remand, defendant faced two counts of first degree murder and one count of aggravated robbery. He renewed his motion to dismiss the case on speedy trial grounds, which the trial court denied. His second trial began on April 18, 2011.
Defendant elected to testify and offered evidence that he had fled to Mexico before his first trial because his prior trial attorney had advised him to flee there, and his attorney's preparation for trial had been incompetent. The trial court determined that defendant's testimony opened the door to evidence of his flight to Mexico, which had previously been ruled inadmissible in his first trial. The prosecution called defendant's prior trial attorney to provide rebuttal testimony regarding his preparation for defendant's first trial, his general communication with defendant leading up to the first trial, and to refute defendant's testimony that the attorney had advised him to flee to Mexico before the first trial.
Following trial, defendant submitted to the jury the lesser nonincluded offense of accessory after the fact to first degree murder. The jury convicted defendant on the accessory count, acquitted him on the other counts, and the trial court sentenced him to twelve years of imprisonment. This appeal followed.
II. Speedy Trial
Defendant asserts that the trial court violated his statutory and constitutional rights to speedy trial when it denied his motions to dismiss the charges because the six-month speedy trial period expired during the pendency of the prosecution's appeal from the postconviction court's order granting a new trial, and the prosecution failed to seek a stay of the order. We disagree.
A. Preservation and Standard of Review
Between the postconviction court's new trial order and the start of the second trial, defendant repeatedly asserted his right to speedy trial, both orally and in writing. In a number of these motions, defendant generally referred to both his statutory and constitutional rights, citing both the United States and Colorado Constitutions. At different times, defendant cited to both state and federal case law. For purposes of this appeal, we conclude that defendant properly preserved both the state and federal claims for appellate review.
" We review a trial court's denial of a motion to dismiss for violation of speedy trial rights as a mixed question of law and fact." People v. Valles, 2013 COA 84, ¶ 20. " Thus, we will not disturb the trial court's factual findings underlying its speedy trial decision if those findings are supported by the record. However, we review de novo the trial court's application of those facts to the controlling legal standard." Id. (citation omitted). " The application of the speedy trial statute to undisputed facts presents a question of law that we review de novo." People v. Nagi, 2014 COA 12, ¶ 12.
Here, the court had no facts to resolve concerning the speedy trial issue. We will therefore review de novo whether the speedy trial period expired during the prosecution's appeal of the new trial order.
The United States and Colorado Constitutions grant a defendant the right to a speedy trial. U.S. Const. amend. VI; Colo. Const. art. II, § § 16, 25; Valles, ¶ 44.
Section 18-1-405, C.R.S. 2013, codifies Colorado's constitutional right to a speedy trial. See People v. McMurtry, 122 P.3d 237, 240-41 (Colo. 2005) (" This statutory protection is meant to give effect to the constitutional right to a speedy trial. The statute does not create any additional rights. Rather, it provides a 'method of securing' the
constitutional right of an accused to a speedy trial." ...