This Opinion is subject to revision upon final publication.
City and County of Denver District Court No. 08CR2348. Honorable Brian R. Whitney, Judge.
John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
[¶1] Defendant, Darrell Demark Payne, appeals the judgment of conviction entered on jury verdicts finding him guilty of burglary and theft. He also appeals his adjudication as a habitual offender and the resulting sentence. We reverse his convictions, vacate his sentence, and remand for a new trial.
[¶2] V.V.'s home was burglarized while he and his family were away. A neighbor, who had observed part of the burglary, reported that she had noticed a car parked near V.V.'s house. Several of the car doors were open, and a man was putting something into the back seat of the car. According to the neighbor, the man was acting " kind of nervous." The neighbor noted the car's license plate number and called the police to report a suspected burglary. V.V. later informed officers that his home had been burglarized, " everything was out of place," and his television and other personal items were missing.
[¶3] Four days after the burglary, police officers pulled over defendant and noticed that the vehicle he was driving matched the description that the neighbor had given to the police. Officers later included defendant's photograph in a photo lineup that was presented to the neighbor. She identified two photographs -- one of defendant and one of a different person -- as potentially resembling the burglar. Officers then arrested defendant at his home, which was several blocks from the location of the burglary.
[¶4] The People charged defendant with second degree burglary (a class 3 felony), theft (a class 4 felony), and five habitual criminal counts. A jury found him guilty of the burglary and theft charges. The trial court subsequently adjudicated him a habitual criminal and sentenced him to forty-eight years in the custody of the Department of Corrections.
II. Defendant's Right to Be Present
[¶5] Defendant contends that his right to be present at his trial was violated when the trial court delivered a modified Allen instruction to the jury in his absence during jury deliberations. We agree.
A. Law and Standard of Review
[¶6] " Article II, section 16, of the Colorado Constitution, and the Due Process Clause, as well as the Sixth Amendment to the United States Constitution,
guarantee the right of a criminal defendant to be present at all critical stages of the prosecution." People v. White, 870 P.2d 424, 458 (Colo. 1994); see Larson v. Tansy, 9 ...