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People v. Beller

Court of Appeals of Colorado, Fourth Division

December 29, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Peter Wilson Sund Beller, Defendant-Appellant.

         City and County of Denver District Court No. 10CR81 Honorable Edward D. Bronfin, Judge.

         JUDGMENT AFFIRMED.

          Cynthia H. Coffman, Attorney General, John J. Fuerst III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

          OPINION

          MILLER JUDGE.

         ¶ 1 Defendant, Peter Wilson Sund Beller, [1] went to trial for felony murder and two counts of aggravated robbery. The aggravated robbery charges - along with the noncharged offenses of attempted aggravated robbery, robbery, and attempted robbery - served as predicate offenses underlying the felony murder count. The jury acquitted Beller of both aggravated robbery counts but hung on the felony murder count. The trial court held a second trial on the felony murder count with robbery and attempted robbery serving as predicate offenses. The second jury convicted Beller of felony murder.

         ¶ 2 We are unaware of authority from the United States Supreme Court or from Colorado directly controlling Beller's argument that his retrial for felony murder violated the Double Jeopardy Clause. We ultimately conclude that it did not. We then conclude that admitting a codefendant's hearsay statements did not violate the hearsay rules or our state Confrontation Clause. We therefore affirm Beller's felony murder conviction.

         I. Background

         ¶ 3 Beller arranged to buy two ounces of marijuana through a man named Justin Singleton. Singleton brought Beller to his father's house to complete the deal.

         ¶ 4 According to Singleton, he retrieved the two ounces of marijuana from his father's room and gave it to Beller. Beller then pulled out a gun and demanded the rest of the marijuana in the house. Singleton alerted his father that Beller had a gun. Singleton's father retrieved his own gun and walked into the hallway. Several shots were fired and Singleton's father fell to the ground. Singleton grabbed a gun and started shooting; Beller fled.

         ¶ 5 Beller described a different version of these events. He said his friend, Scott Shaffer, drove him to meet Singleton. Shaffer stayed in the car when Beller got out and accompanied Singleton and one of Singleton's friends to a house. While Singleton discussed the deal with his father in another room, Beller took out $600, set it on a table, and walked towards the other room to "haggle" with Singleton. As he walked he heard feet "shuffling, " looked back, and saw Singleton's friend running out the door; his money was gone. Beller pulled out a gun to chase Singleton's friend. Singleton saw the gun and ran into another room. Singleton's father then appeared and shot Beller in the chest. Although Beller did not remember shooting his gun, he was "pretty sure" he did. Singleton then shot at him, but he was able to run out of the house. Shaffer took him to the hospital.

         ¶ 6 Beller shot Singleton's father in the head during these events and the father died as a result.

         ¶ 7 The People charged Beller with felony murder (with Singleton's father as the victim), two counts of aggravated robbery (with Singleton and his father as victims), and menacing (with Singleton's friend as the victim). The trial court's jury instructions identified aggravated robbery, attempted aggravated robbery, robbery, and attempted robbery as predicate offenses for the felony murder count. The court also instructed the jury about the elements of aggravated robbery, robbery, and attempt. The verdict forms on the aggravated robbery counts did not permit the jury to consider any lesser included offenses. The jury found Beller not guilty of both aggravated robbery counts, guilty of menacing, and hung on the felony murder count. The trial court declared a mistrial on the felony murder count.

         ¶ 8 Before the second trial, Beller moved for a judgment of acquittal on the felony murder count, arguing that the Double Jeopardy Clause precluded another trial on that count. The trial court denied Beller's motion. In the second trial, the court's instructions identified only robbery and attempted robbery as predicate offenses for felony murder, but those predicate offenses were not charged as stand-alone offenses. The jury found Beller guilty of felony murder.

         II. Discussion

         ¶ 9 On appeal, Beller argues that his retrial for felony murder violated the Double Jeopardy Clause. He also argues that the court violated the hearsay rules and his confrontation rights by admitting several of Shaffer's hearsay statements.

         A. Double Jeopardy

         ¶ 10 We review double jeopardy claims de novo. People v. Frye, 2014 COA 141, ¶ 30.

         ¶ 11 The Double Jeopardy Clause guarantees that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V; accord Colo. Const. art. II, § 18. This language embodies two rules bearing on this case. First, a defendant may not be subjected to successive prosecutions for the same offense after an acquittal. Monge v. California, 524 U.S. 721, 727-28 (1998). Second, issue preclusion prevents the prosecution from litigating again any issue that was necessarily decided by a jury's not guilty verdict in a prior trial. See Yeager v. United States, 557 U.S. 110, 119 (2009). Beller argues that both rules were violated when he was retried for felony murder after the first jury found him not guilty of aggravated robbery.

         1. Successive Prosecutions for the Same Offense

         ¶ 12 Beller's argument starts with his claim that felony murder and all four original predicate offenses - aggravated robbery, attempted aggravated robbery, robbery, and attempted robbery - are the "same offense" for double jeopardy purposes. It is unclear whether the People dispute this claim, but, in any event, we agree with it.

         ¶ 13 For double jeopardy purposes, "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). By definition, a greater offense and any lesser offense included in it are the "same" for double jeopardy purposes. Brown v. Ohio, 432 U.S. 161, 168 (1977). A predicate felony is a lesser included offense of the felony murder count it supports. Meads v. People, 78 P.3d 290, 295 (Colo. 2003). Robbery is a lesser included offense of aggravated robbery. People v. Borghesi, 66 P.3d 93, 97 (Colo. 2003). And a charged offense necessarily includes an attempt to commit the charged offense. See Crim. P. 31(c). All of this means that the felony murder count against Beller and all four original predicate offenses were the same offense for double jeopardy purposes. We now turn to whether Beller was subjected to successive prosecutions.

         ¶ 14 The Double Jeopardy Clause, however, applies only if there has been an event - an acquittal, for example - that terminates the original jeopardy. Richardson v. United States, 468 U.S. 317, 325 (1984). The failure of the jury to reach a verdict, however, is not an event that terminates jeopardy. Id. So a retrial following a hung jury does not offend the Double Jeopardy Clause. Id. at 324.

         ¶ 15 Beller, however, focuses not on the first jury's failure to agree about felony murder but on its not guilty verdicts on the aggravated robbery counts. He assigns two consequences to the not guilty verdicts. First, he argues that the Double Jeopardy Clause precluded a second trial for the greater offense of felony murder after a jury acquitted him of the lesser included aggravated robbery counts. Second, he argues that the first jury's verdicts acquitted him of aggravated robbery and the lesser included offenses of attempted aggravated robbery, robbery, and attempted robbery. As a result, he continues, the Double Jeopardy Clause precluded further litigation over his guilt or innocence of robbery or attempted robbery, the predicate offenses in his second trial. We are not persuaded.

         ¶ 16 Fatal to Beller's arguments is the fact that the People prosecuted him for felony murder and the aggravated robberies through the same information in the same case. In our view, the consequence of that fact is that Beller was not subjected to successive prosecutions.

         ¶ 17 Arguing otherwise, Beller relies on cases, such as Brown, in which a defendant was charged separately with crimes that constituted the "same offense." The defendant in Brown was charged with and convicted of joyriding after he was caught driving a stolen car. 432 U.S. at 162. He was later charged with and pleaded guilty to auto theft for stealing the car. Id. at 162-63. Applying the Blockburger test, the Court concluded that joyriding and auto theft constituted the same offense for double jeopardy purposes. Id. at 168. This led the Court to further conclude that the defendant had been twice placed in jeopardy for the same offense. Id. at 169-70.

         ¶ 18 Because Brown involved separate prosecutions, it does not address the situation before us, in which the People prosecuted Beller for lesser and greater offenses in a single case through a single information. The same is true of the other cases Beller relies on that discuss separate prosecutions. See Illinois v. Vitale, 447 U.S. 410, 411-13 (1980) (juvenile was convicted of failing to reduce speed to avoid an accident and was subsequently charged with involuntary manslaughter); Harris v. Oklahoma, 433 U.S. 682, 682 (1977) (the defendant was convicted of felony murder and later convicted under a separate information of a lesser included crime); United States v. Gooday, 714 F.2d 80, 82 (9th Cir. 1983) (noting that an "acquittal on the explicit charge therefore bars subsequent indictment on the implicit lesser included offenses").

         ¶ 19 Stronger support for Beller's position is Wilson v. Czerniak, 355 F.3d 1151 (9th Cir. 2004). In Wilson, a jury acquitted the defendant of intentional murder yet hung on greater counts of aggravated felony murder. Id. at 1152. The court concluded that the Double Jeopardy Clause precluded trying the defendant again for aggravated felony murder after he had been acquitted of the lesser included offense. Id. at 1157. We agree with Beller that Wilson suggests that he could not be retried for felony murder after being acquitted of the aggravated robbery counts. But we are not bound by a federal circuit court's interpretation of the Federal Constitution. See People v. Rossman, 140 P.3d 172, 176 (Colo.App. 2006).

         ¶ 20 We are persuaded not to follow Wilson's interpretation of the Double Jeopardy Clause for two reasons. First, the Wilson court relied on Brown to support the proposition that "a criminal defendant may not be retried for a crime following an acquittal or conviction on a lesser included or greater inclusive offense." 355 F.3d at 1154. But, as we discussed earlier, Brown, unlike Wilson and this case, involved separate prosecutions. Yet the Wilson court did not acknowledge this difference or explain why it should not matter.

         ¶ 21 Second, in order for the defendant in Wilson to have been found guilty of the greater offense of aggravated murder, each of the elements of the lesser offense of the intentional murder count had to have been established. Id. at 1155. Thus, trying the defendant again on aggravated murder necessarily would have given the prosecution a second chance to relitigate the elements of intentional murder, one or more of which the jury had already found lacking. See Brown, 432 U.S. at 165 (Double Jeopardy Clause protects the accused from attempts to relitigate facts underlying prior acquittal). In this case, however, Beller could have been found guilty of the greater offense of felony murder without committing all of the elements of aggravated robbery because aggravated robbery was not the only predicate offense specified by the prosecution. For example, the second jury could have found that Beller did not take anything of value, but nonetheless attempted to commit simple robbery - a predicate offense relied on by the prosecution in both trials.

         ¶ 22 Shortly after Wilson, a different panel of the Ninth Circuit concluded under similar circumstances that whether the relevant greater and lesser offenses are part of the same indictment "makes all the difference" for double jeopardy purposes. United States v. Jose, 425 F.3d 1237, 1242 (9th Cir. 2005). The defendants in Jose were convicted of felony murder and predicate offenses. Id. at 1240. Their predicate offense convictions were affirmed and their felony murder convictions reversed on appeal. Id. The Jose panel rejected the defendants' argument that the Double Jeopardy Clause precluded retrial for felony murder, concluding that "final convictions on the underlying predicate felonies do not trigger double jeopardy protections against retrial of the greater offense originally charged under the same indictment in the same trial." Id. at 1248.

         ¶ 23 We are mindful of two differences between Jose and this case. First, in Jose the prosecution sought a retrial after an appeal; in this case the prosecution sought a retrial after a hung jury. Second, the defendants in Jose were convicted of lesser included offenses; Beller was acquitted of lesser included offenses.

         ¶ 24 Neither difference renders Jose's analysis inapplicable here. Jeopardy continues "whether the retrial is precipitated by a hung jury or a defendant's successful reversal of conviction." Id. at 1244. And the Jose panel found insignificant for its purposes whether jeopardy terminated on one charge because of a conviction as opposed to an acquittal. Id. at 1244-45. At bottom, this case shares with Jose the features that the panel considered relevant: "the greater and lesser included offenses were tried together under ...


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