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People v. Hebert

Court of Appeals of Colorado, Fourth Division

September 8, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Michelle Ann Hebert, Defendant-Appellant.

         Boulder County District Court No. 13CR854 Honorable Patrick D. Butler, Judge

          Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

          OPINION

          MÁRQUEZ, JUDGE [*]

         ¶ 1 Defendant, Michelle Ann Hebert, appeals the judgment of conviction entered on jury verdicts finding her guilty of theft from an at-risk adult and several tax offenses. Following our limited remand order directing the district court to make further findings about whether Hebert was entitled to appointed counsel at the time of trial, the district court made those findings. We now address all of Hebert's appellate arguments and affirm her conviction.

         I. Background

         ¶ 2 According to the prosecution's evidence, Hebert convinced the victim, an elderly man, to give her many loans totaling several hundred thousand dollars and failed to pay back the loans. The victim contacted the police, and the People initially charged Hebert with theft from an at-risk adult.

         ¶ 3 Hebert was appointed counsel from the Office of the Public Defender. The same day that appointed counsel entered his appearance, the People moved to depose the victim pursuant to section 18-6.5-103.5, C.R.S. 2015 (allowing for depositions of at-risk adults in criminal cases). Because the victim's health was failing, the People requested that he be deposed from his home via two-way video conference with both parties questioning him live from the courtroom. Hebert's appointed counsel objected, arguing, among other things, that (1) allowing the deposition to occur via two-way video conference would violate Hebert's Sixth Amendment right to confront the victim face-to-face and (2) granting the motion would render his assistance to Hebert ineffective because he would not have enough time to prepare an effective cross-examination of the victim. The district court held a hearing and granted the motion, but ordered that the deposition not occur for another five weeks to give Hebert's appointed counsel time to prepare.

         ¶ 4 Six weeks after the district court granted the motion, the victim was placed under oath and deposed at home via two-way video conference, with both sides asking him questions from the courtroom. Hebert was also present in the courtroom. The deposition was recorded, and, because the victim died before trial, the video recording was admitted at trial.

         ¶ 5 After the deposition but before trial, Hebert retained private counsel to represent her. However, shortly thereafter, the People charged Hebert with the additional tax-related offenses. Hebert's counsel then moved to withdraw, and the court granted the motion. Hebert requested appointed counsel, but the public defender's office determined that she was ineligible for appointed counsel.

         ¶ 6 Hebert represented herself at trial. The jury found her guilty of all of the charged counts, and the district court entered a judgment of conviction and sentenced her accordingly. She appealed, arguing that the district court erred by (1) failing to make its own findings about whether she was eligible for appointed counsel after her private counsel withdrew and (2) admitting the recording of the victim's deposition at trial. As noted, we remanded the case to the district court with directions to make its own findings about Hebert's eligibility for substitute counsel, and we reserved addressing her argument about the deposition. Now that the court has made the necessary findings, we address both issues - Hebert's eligibility for appointed counsel and the admission of the victim's deposition.

         II. Hebert Was Ineligible for Appointed Counsel

         ¶ 7 Hebert argues that the district court erred by determining on remand that she was ineligible for appointed counsel. We disagree.

         ¶ 8 We review the court's decision for an abuse of discretion. See People v. ...


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