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
Goudy, Alternate Defense Counsel, Carbondale, Colorado, for
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
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
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
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.
Joinder of the Bank Robbery Cases
9 Butson first contends that the district court erred by
joining the three bank robbery cases for trial.
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
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
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 ...