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Adams County District Court No. 11CR276. Honorable Steven E. Shinn, Judge.
John W. Suthers, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Robinson Waters & O'Dorisio, P.C., Anthony L. Leffert, Denver, Colorado; Campbell Killin Brittan and Ray, LLC, Phillip A. Parrott, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE WEBB. Román and Booras, JJ., concur.
[¶1] Defendant, Jerry Lee Rhea, was convicted of one count of theft, one count of conspiracy to commit theft, and three counts
of attempting to influence a public official. He appeals his convictions for theft and conspiracy to commit theft on two grounds. First, presenting novel questions in Colorado, he contends the trial court's error in allowing multiplicitous charges to go before the jury warrants reversal because merging his convictions at sentencing did not cure the alleged double jeopardy violation, and alternatively, his due process rights were violated because those charges may have led the jury to reach a compromise verdict. Second, he contends he is entitled to a judgment of acquittal or a new trial because of prosecutorial misconduct. We conclude that merger cured any double jeopardy concerns, defendant's due process rights were not violated, and prosecutorial misconduct does not warrant relief.
[¶2] Defendant was charged with ten counts of theft, ten counts of conspiracy to commit theft, and three counts of attempting to influence a public official. These charges arose from approximately $250,000 in road work for which defendant's company invoiced Adams County and was paid, but allegedly did not perform. The prosecution's case included a former employee, who testified that defendant had instructed him to falsify invoices describing this work, and an audit that confirmed the overbilling.
[¶3] Before trial, defendant moved to dismiss the theft and conspiracy charges, arguing that he was prejudiced by the multiplicity of these counts. The trial court ruled that the prosecution had discretion to charge defendant with these offenses and present them to the jury, and any multiplicity issues could be resolved at sentencing.
[¶4] Following a four-week trial, the jury convicted defendant of all charges. Defendant moved for a judgment of acquittal or a new trial based on alleged prosecutorial misconduct and for merger of the theft and conspiracy counts. The trial court found some prosecutorial misconduct, but concluded that it was harmless. The court merged some of his convictions, entering convictions for one count of theft, one count of conspiracy to commit theft, and three counts of attempting to influence a public official. It sentenced him on these counts.
II. Defendant's Rights Under the Double Jeopardy and Due Process Clauses Were Not Violated
[¶5] Defendant contends allowing multiplicitous charges to go before the jury violated the double jeopardy prohibition and his due process right to a fair trial. Both aspects of this contention raise unresolved questions of law in Colorado. We conclude that the double jeopardy prohibition does not preclude a trial court from allowing multiplicitous charges to go before a jury; any prejudice can be cured by merging multiplicitous convictions; and because the same evidence could have been presented to the jury, which convicted defendant on all counts, no due process violation occurred.
A. Preservation and Standard of Review
[¶6] The parties agree that defendant preserved this issue by raising multiplicity both before and during trial. They disagree on the correct standard of review for a claim that multiplicity violated the double jeopardy prohibition. Defendant argues for a de novo standard based on cases such as Lucero v. People, 2012 CO 7, ¶ 19, 272 P.3d 1063. The Attorney General responds that we should review for an abuse of discretion, citing United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990), and other federal circuit court cases.
[¶7] Whether an indictment is multiplicitous and, if so, whether double jeopardy concerns warrant reversal are questions of law reviewed de novo. See, e.g., Lucero, ¶ 19; People v. Arzabala, 2012 COA 99, ¶ 19, 317 P.3d 1196; see also United States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir. 1998) (" We review de novo the question whether an indictment . . . is multiplicitous and thus violates a defendant's double jeopardy rights." ). But the scope of review governing a trial court's decision to allow multiplicitous charges to go before the jury has not been discussed in any Colorado case cited by the parties, or that we have found. For reasons more fully described in the next
section, we adopt the federal rule that appellate courts " review [a] district court's failure to compel the Government to elect one theory of prosecution, as a remedy for a multiplicitous indictment, for an abuse of discretion." United States v. Platter, 514 F.3d 782, 785 (8th Cir. 2008).
B. The Theft and Conspiracy Charges Were Multiplicitous
[¶8] Here, the trial court recognized that sentencing defendant on ten counts of the theft statute and on ten counts of conspiracy to commit theft for acts within the same six-month period would have violated the double jeopardy prohibition. See Lucero, ¶ 24. The Attorney General concedes that this ruling was correct. For the following reasons, we agree.
[¶9] The applicable theft statute, ch. 384, sec. 3, § 18-4-401(4), 2007 Colo. Sess. Laws 1691, required " all thefts committed by the same person within a six-month period (except any for which jeopardy had already attached before [the person] committed the others), to be joined and prosecuted as a single felony." Roberts v. People, 203 P.3d 513, 516 (Colo. 2009), superseded by statute, ch. 244, sec. 2, § 18-4-401(4)(a), 2009 Colo. Sess. Laws 1099-1100. Yet here, the prosecution charged defendant with and the jury convicted him on ten separate theft counts and ten related conspiracy counts, all of which were based on acts that occurred within a six-month period. Thus, these twenty charges and convictions were multiplicitous because " the legislature provided that he be punished for only one" count of each. Lucero, ¶ 24.
C. Merger by the Trial Court at Sentencing Cured Any Abuse of Discretion
[¶10] Despite conceding multiplicity, the Attorney General asserts that the trial court had discretion to allow multiplicitous charges to go before the jury, and any harm from abuse of that discretion was cured by merging the multiplicitous charges into a single conviction. Defendant disagrees. On the particular facts presented, we side with the Attorney General.
[¶11] " Multiplicity is the charging of the same offense in several counts, culminating in multiple punishments." Quintano v. People, 105 P.3d 585, 589 (Colo. 2005). " The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense." United States v. Galvan, 949 F.2d 777, 781 (5th Cir. 1991) (internal quotation marks omitted); see also People v. Vigil, 251 P.3d 442, 448 (Colo. App. 2010) (" Multiplicitous convictions are prohibited because they violate the constitutional prohibition against double jeopardy." ).
[¶12] " [T]he multiplicitous bar is at the core of the prohibition against double jeopardy." Quintano, 105 P.3d at 590. Thus, " [a]nalysis of whether convictions should be merged must . . . be based on double jeopardy principles." People v.
Henderson, 810 P.2d 1058, 1060 (Colo. 1991). The Double Jeopardy Clause, U.S. Const. amend. 5, embraces " three separate but related prohibitions: (1) a rule which bars a reprosecution for the same offense after acquittal; (2) a rule barring reprosecution for the same offense after conviction, and; (3) a rule barring multiple punishment for the same offense." Henderson, 810 P.2d at 1060 (internal quotation marks omitted).
[¶13] Colorado cases provide a framework for deciding when a defendant's conduct may support multiple punishments and thus withstand a double jeopardy challenge. See, e.g., Roberts, 203 P.3d at 516; Quintano, 105 P.3d at 590-91. But the parties have not cited -- nor have we found -- a Colorado case addressing whether merger at sentencing would cure double jeopardy concerns arising from multiplicitous charges and jury convictions. See Lucero, ¶ 23 (addressing multiplicitous convictions as an illegal sentence); Roberts, 203 P.3d at 516 (addressing " unit of prosecution" for theft statute); Vigil, 251 P.3d at 449 (addressing double jeopardy concerns of multiplicitous convictions sua sponte); cf. Patton v. People, 35 P.3d 124, 128-33 (Colo. 2001) (vacating conviction where the defendant entered guilty plea and was sentenced for two convictions based on the same transaction, while the General Assembly had authorized punishment for only one).
[¶14] In each of these cases, the defendant sustained multiple convictions based on charges that the appellate court held were multiplicitous. While the courts in Lucero, ¶ 26, and Vigil, 251 P.3d at 451, directed that the multiplicitous theft convictions be merged on resentencing, neither court addressed whether a trial court has discretion to allow a jury to consider multiplicitous charges, provided that any multiplicitous convictions are merged at sentencing. Nor do these cases consider possible prejudice to a defendant from trial of multiplicitous charges, beyond multiple convictions. The federal circuits have addressed these issues, as follows.
[¶15] While the Double Jeopardy Clause protects defendants from multiple punishments for the same offense, " [w]here there has been no prior conviction or acquittal, the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, so long as no more than one punishment is eventually imposed." United States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006); see also Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (" While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [a defendant] for such multiple offenses in a single prosecution." ).
[¶16] Thus, when faced with multiplicitous charges, a trial court may take one of two courses. The court may exercise its discretion " to require the prosecution to elect between multiplicitous counts before trial." United States v. Johnson, 130 F.3d 1420, 1426 (10th Cir. 1997). Where, as here, multiplicity is both raised before trial and clear at that time, multiplicitous counts should be eliminated before trial because doing so would avoid the due process inquiry discussed below. But if a defendant has been convicted of multiplicitous counts, " the district court may exercise its discretion in deciding which conviction to vacate" at the sentencing phase. United States v. Wiga, 662 F.2d 1325, 1335-36 (9th Cir. 1981).
[¶17] The later approach has been attributed to Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), where " the Court suggested that any error resulting from multiplicitous charges should be resolved at the sentencing phase, not the
guilt phase, of the trial." Throneburg, 921 F.2d at 657 (citing Ball, 470 U.S. at 859). In other words, " [w]here multiplicitous convictions are found, 'the only remedy . . . is . . . to vacate one of the underlying convictions as well as the . . . sentence based upon it.'" United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007) (quoting Rutledge v. United States, 517 U.S. 292, 301-02, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996)). Merger has the same effect as vacating one of the multiplicitous sentences.
[¶18] Although these cases do not articulate a test for determining when a trial court has abused its discretion in allowing multiplicitous charges to be tried, we consider them ...