Arapahoe County District Court No. 07CR1837 Honorable Gerald J. Rafferty, Judge Honorable James F. Macrum, Judge
John W. Suthers, Attorney General, Patricia R. Van Horn, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Martinez Law, LLC, Esteban A. Martinez, Longmont, Colorado, for Defendant-Appellant
¶ 1 Defendant, Joshua Elliot Wingfield, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree possession of contraband, dangerous instrument. We affirm.
¶ 2 Wingfield shared a cell with two other inmates at the Arapahoe County Jail. Deputies received a report of a possible escape attempt. Through an intercom, they heard "scraping" and "banging" sounds coming from the cell. As one deputy approached the cell, other deputies monitoring the intercom heard Wingfield say: "Fuck, cops. Flush it. Flush it." When deputies entered the cell, they discovered a trench had been dug around the perimeter of the window. They further found a crutch that had a flattened end, metal bars, a portion of a metal drain or grate, and a shank.
¶ 3 Wingfield was charged with first degree possession of contraband, attempted escape with a pending felony, conspiracy to commit escape, and three habitual criminal counts. The court ultimately granted Wingfield's motion for judgment of acquittal on the escape counts because the prosecution had not presented any evidence that Wingfield was in custody for a felony offense.
A. Competency Hearing
¶ 4 At a July 16, 2007 hearing, the prosecutor informed the court that a doctor at the jail had recommended that Wingfield undergo a psychiatric evaluation at the state hospital. The court made a preliminary finding of incompetency and set a competency review hearing.
¶ 5 That hearing was held on October 11, 2007, but Wingfield was unable to attend because he was being held in the Pueblo County Jail on assault charges. Defense counsel waived Wingfield's appearance, and the court found Wingfield competent to proceed.
¶ 6 Wingfield subsequently requested a second competency hearing on January 9, March 12, and April 23, 2008, on April 27 and April 29, 2009. The trial court denied Wingfield's request for a second competency hearing on each occasion. At a hearing on February 11, 2011, Wingfield moved for a new trial based on his alleged incompetence throughout trial, and the trial court denied that motion.
B. Choice of Evils
¶ 7 On March 12, 2009, Wingfield informed the prosecution that he wished to pursue a choice of evils defense. According to Wingfield, he was placed in a cell with two inmates, Matthew McGary and Brandon Hoyt, who had already started to effectuate an escape from the prison by knocking off chunks of concrete around their cell's window. McGary and Hoyt informed Wingfield that they were members of a white supremacist gang. McGary allegedly told Wingfield that if he did "anything to stop [the breakout], that he was a dead man. That he would be labeled a snitch and they would kill him."
¶ 8 After this threat, Wingfield allegedly began pursuing alternatives to going along with the escape, filing several inmate request forms with the Arapahoe County sheriffs, requesting his removal from the cell. In the filings, Wingfield did not specify his reasons for seeking removal. Only when Wingfield's requests were denied did he decide to go along with his cellmates' escape plan.
¶ 9 The prosecution subsequently filed a motion in limine in which it argued that defense counsel had not submitted a factual basis supporting the choice of evils defense and, therefore, the court should not allow Wingfield to pursue it.
¶ 10 The trial court granted the prosecution's motion, finding that, although Wingfield faced an imminent threat, he could have reached a point of safety by telling jailers at any time what was going on and requesting to be removed from his cell.
¶ 11 Wingfield was convicted of possession of contraband. The court adjudicated him a habitual offender and he was sentenced to eighteen years in the custody of the Department of Corrections. II. Waiver of Presence at Competency Hearing
¶ 12 Wingfield contends that the trial court erred when it allowed defense counsel to waive his presence at the competency hearing. We discern no reversible error.
A. Standard of Review
¶ 13 Whether a trial court violated a defendant's right to be present is a constitutional question that is reviewed de novo. People v. Price, 240 P.3d 557, 560 (Colo.App. 2010).
¶ 14 Wingfield contends that his claim should be reviewed under the constitutional harmless error standard. See Luu v. People, 841 P.2d 271, 274-75 (Colo. 1992). Constitutional harmless error requires the reversal of a defendant's conviction that occurred as a result of the trial court's error unless the reviewing court finds the error harmless beyond a reasonable doubt. Blecha v. People, 962 P.2d 931, 942 (Colo. 1998).
¶ 15 The People disagree, arguing that the plain error standard applies to unpreserved constitutional claims. See People v. Miller, 113 P.3d 743, 748 (Colo. 2005).
¶ 16 Although we note that Wingfield's absence from the competency hearing made it impossible for him to object to defense counsel's waiver of his right to presence, we need not resolve this issue because we conclude that the ...