and County of Denver District Court No. 10CR81 Honorable
Edward D. Bronfin, Judge.
Cynthia H. Coffman, Attorney General, John J. Fuerst III,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Jason C.
Middleton, Deputy State Public Defender, Denver, Colorado,
1 Defendant, Peter Wilson Sund Beller,  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
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.
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.
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.
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
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