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People v. Butson

Court of Appeals of Colorado, Seventh Division

April 20, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Brock Edward Butson, Defendant-Appellant.

         El Paso County District Court Nos. 13CR3575, 13CR3586 & 13CR3600 Honorable Robert L. Lowrey, Judge

          Cynthia H. Coffman, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Kathy Goudy, Alternate Defense Counsel, Carbondale, Colorado, for Defendant-Appellant


          HARRIS JUDGE.

         ¶ 1 CRE 408 bars the admission at trial of settlement discussions, or offers to compromise a claim, when the evidence is offered to prove liability for, invalidity of, or amount of a disputed claim.

         ¶ 2 Defendant Brock Edward Butson was convicted of multiple counts of bank robbery and conspiracy to commit bank robbery. On appeal, he contends that his statements to police during a custodial interrogation constituted settlement negotiations, or an offer to compromise a claim. Thus, he argues, pursuant to Rule 408, his statements should have been excluded at trial.

         ¶ 3 We conclude that, subject to certain exceptions, Rule 408 bars the admission in a criminal proceeding of statements made in connection with the settlement of a civil claim. As Butson acknowledges, his statements to police, even if construed as an offer to compromise, were made during discussions concerning criminal charges, not a civil claim. Moreover, his statements, which he made to a government agent, would be admissible under an exception to the rule. We therefore reject Butson's argument that the district court erred in denying his motion to suppress the statements.

         ¶ 4 We also reject Butson's contentions that the district court erred in joining his three separately charged bank robbery cases for trial and in denying his motion for a special prosecutor. Accordingly, we affirm the judgment of conviction.

         I. Background

         ¶ 5 During the summer of 2013, Butson and his two sons robbed several banks in and around Colorado Springs. In each of the nine robberies, Butson selected the target bank, wrote the demand note, and acted as the designated "getaway driver, " while his sons, wearing dark-colored baseball caps each time, robbed the banks.

         ¶ 6 The spree ended when the police arrested Butson and his sons. The People charged Butson in three cases (13CR3575, 13CR3586, and 13CR3600) with robbery and conspiracy to commit robbery. Butson was interviewed by police, waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and provided details about the planning and commission of the robberies. He later moved to suppress his statements on the theory that he made them during the course of settlement discussions and therefore they were inadmissible at trial under CRE 408. The district court denied Butson's motion, finding that the evidence did not demonstrate that Butson and the officer were engaged in a mutual effort to compromise or negotiate the charges against Butson or his sons.

         ¶ 7 In the meantime, while the bank robbery cases were pending, the People filed a new witness tampering complaint against Butson, alleging that he had sent one of his sons a letter from jail, in which he attempted to dissuade the son from testifying at the bank robbery trial. Because the prosecutor in the bank robbery cases had handled the letter, Butson contended that he was entitled to a special prosecutor in all of his pending cases. The court denied Butson's request after determining that the prosecutor was not a potential witness in the witness tampering case.

         ¶ 8 The prosecution moved to join the three bank robbery cases for trial, and the court granted the motion over defense counsel's objection. A jury found Butson guilty of all but two counts. A month later, the court dismissed the witness tampering case when the prosecution failed to present sufficient evidence at the preliminary hearing.

         II. Joinder of the Bank Robbery Cases

         ¶ 9 Butson first contends that the district court erred by joining the three bank robbery cases for trial.

         A. Standard of Review

         ¶ 10 Relying on People v. Bondsteel, 2015 COA 165, ¶ 27 (cert. granted Oct. 31, 2016), the People contend that, notwithstanding Butson's initial objection to joinder of the cases, he waived the claim by failing to renew his objection or to seek a severance during trial. We are not persuaded.

         ¶ 11 The division in Bondsteel held that an objection to joinder is unpreserved if not renewed at trial, id., but the division also acknowledged that its holding departed from nearly fifteen years of contrary precedent. See People v. Gross, 39 P.3d 1279, 1282 (Colo.App. 2001) (requiring only a pretrial objection to preserve the issue); see also People v. Curtis, 2014 COA 100, ¶ 12 (noting that People v. Gross "has been on the books without apparent controversy for almost thirteen years" and concluding that pretrial objection preserves a challenge to joinder). Because Butson's trial preceded the Bondsteel decision, even were we to agree with that decision, we would not be inclined to apply its holding to this case because doing so may give rise to due process concerns. See Bondsteel, ¶ 30 (recognizing that, "[t]o hold that the issue is waived, despite this precedent, could be a retroactive application of a new rule, which might implicate due process").

         ¶ 12 We review a decision concerning the joinder of separate cases for an abuse of discretion. Curtis, ¶ 14. An abuse of discretion occurs when the joinder causes actual prejudice as a result of the jury's inability to separate the facts and legal theories applicable to each offense. Id. at ¶ 15; People v. Gregg, 298 P.3d 983, 985-86 (Colo.App. 2011). A defendant cannot establish actual prejudice where evidence of each offense would have been admissible in separate trials. Gregg, 298 P.3d at 986.

         B. Analysis

         ¶ 13 A trial court may order two or more criminal complaints to be tried together if the offenses could have been joined in a single complaint. Crim. P. 13. Two or more offenses may be charged in the same charging document if the offenses are of the same or similar character or are based on two or more connected acts or transactions or are part of a common scheme or plan. Crim. P. 8(a)(2).

         ¶ 14 In evaluating a motion to join cases for trial, the trial court must determine whether the offenses are sufficiently similar to be tried together without causing juror confusion and whether, under CRE 404(b), evidence of each offense would have been admissible in separate trials. Gregg, 298 P.3d at 986.

         ¶ 15 Butson and his sons committed all of the robberies during the course of a few months and all involved the same handful of banks in relatively close proximity to each other. In each robbery, Butson identified the target bank, wrote a note, and staked out an advantageous spot to wait in the getaway car. Then one of the sons - wearing a baseball cap and sunglasses (the perpetrator was dubbed the "Ball Cap Bandit" by the press) - entered the bank with the note, departed with the cash, and escaped in the getaway car driven by Butson. They robbed some banks more than once.

         ¶ 16 Butson points out that the robberies involved different banks with different teller-victims, and were sometimes committed by one son and sometimes by the other. But when determining whether multiple offenses qualify for consolidation, "it is not essential that the means of committing the other crimes replicate in all respects the manner in which the crime charged was committed." People v. Owens, 97 P.3d 227, 231 (Colo.App. 2004) (quoting People v. McKibben, 862 P.2d 991, 993 (Colo.App. 1993)). We conclude that the robberies were sufficiently similar to satisfy Rules 8(a)(2) and 13. See Gregg, 298 P.3d ...

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