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People v. Garrison

Court of Appeals of Colorado, Third Division

August 10, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Lawson P. Garrison, Defendant-Appellant.

         El Paso County District Court No. 13CR3832 Honorable Thomas K. Kane, Judge

          Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Cynthia A. Harvey, Alternate Defense Counsel, Castle Rock, Colorado, for Defendant-Appellant


          WEBB JUDGE

          ¶ 1 The common knowledge and experience of an ordinary person have become one marker of the boundary separating lay from expert testimony. This case involves lay witness testimony about e-mail. So, one might wonder whether this ubiquitous person would be aware that

. the record of each e-mail transmission includes an Internet Protocol (IP) address from which the transmission initiated; . the IP address can be linked to an Internet service provider (ISP); and
. in turn, the ISP can often trace the IP address to the physical address of a particular ISP customer?

         ¶ 2 Despite the dramatic increase in use of e-mail, we join the few jurisdictions to have addressed this question and conclude that such a person would not be aware of these facts, at least in the combination used by the prosecution to explain how the investigation began with charges against the victim, but led to evidence of criminal acts by defendant, Lawson P. Garrison. And because this information was the glue that held much of the prosecution's case against Garrison together, he is entitled to a new trial on the charges of first degree perjury, attempt to influence a public servant (three counts), and conspiracy to attempt to influence a public servant.

         ¶ 3 Turning to Garrison's second issue, the trial court did not abuse its considerable discretion in denying him a continuance of the trial. And because the charges of possessing a defaced firearm and felony menacing were unrelated to IP addresses, his conviction by a jury on those charges stands affirmed.

         I. Facts and Procedural Background

         ¶ 4 According to the prosecution's evidence bearing on the two issues raised on appeal, [1] Garrison had an affair with the victim's wife. After the affair ended, Garrison and his wife set up through Google a Gmail account in the victim's name. Using that account, they began sending themselves derogatory and threatening e-mails.

         ¶ 5 Based on these e-mails, Garrison and his wife made several police reports against the victim and provided related documents to the police. They sought a protection order against the victim and testified about the e-mails at the hearing. The police filed charges against the victim.

         ¶ 6 Seeking evidence to support these charges, the police obtained a subpoena concerning the Gmail account. In response, Google identified two IP addresses. The police associated these addresses with two ISPs. After being subpoenaed, the ISPs identified one IP address as the home of Garrison's wife, where Garrison lived at the time, and the other as her employer. When interviewed by police, both Garrison and his wife denied having set up the account.

         ¶ 7 Even so, all charges against the victim were dropped, the investigation focused on the Garrisons, and they were charged. Garrison's wife pleaded guilty to several charges. Garrison elected to go to trial but he did not testify. His theory of defense was that the victim had hacked into his home computer and the server at his wife's workplace, changing the IP addresses used to access the Gmail account. This process is called "spoofing."

         II. The Trial Court Did Not Abuse Its Discretion in Refusing to Grant Garrison a Continuance

         ¶ 8 If the trial court erred in denying Garrison a continuance and he could show prejudice, he would be entitled to a new trial on all charges. So, we begin with this contention.

         ¶ 9 On the first day of trial - March 3, 2015 - defense counsel renewed her motion for a continuance that she had made at the trial readiness conference four weeks earlier. She conceded that Garrison "d[id] not want a continuance, " but argued that she was not prepared for trial because the case required "specialized computer knowledge, " she did not "get approval for [an] expert until January 30th, " and she had "only met with [the expert] one time."

         ¶ 10 The prosecutor opposed the continuance for the following reasons:

This is one more delay causing one more frustration and anxiety from the victims, from the police officers that I have spent the last, you know, two weeks scheduling and going though all the reports. Again over a thousand pages of reports and discovery. This is the second time, well, that I prepped for this trial in its entirety.

         As to Garrison's expert witness, the prosecutor argued that he had "in my receipt what the expert is going to testify to so apparently he's prepared to testify."

         ¶ 11 The trial court denied the motion. The court explained that "[t]he procedural history of this case includes a lot of motions to continue" and the "risk of prejudice that has been argued by [defense counsel] can be managed by the court." Specifically, the court said that Garrison's expert would be allowed to testify even though he had not been timely endorsed.

         A. Standard of Review and Law

         ¶ 12 A trial court's denial of a motion for a continuance is reviewed for an abuse of discretion. People v. Faussett, 2016 COA 94M, ¶ 12. "A trial court abuses its discretion in denying a motion to continue if, under the totality of the circumstances, its ruling is manifestly arbitrary, unreasonable, or unfair." Id. (citation omitted).

         ¶ 13 "No mechanical test exists for determining whether the denial of a request for a continuance constitutes an abuse of discretion." Id. (citation omitted). Rather, "the answer must be found within the circumstances of each case, particularly in the reasons presented to the trial judge at the time of the request." People v. Roybal, 55 P.3d 144, 150 (Colo.App. 2001).

         B. Analysis

         ¶ 14 Garrison first argues that the trial court should have granted a continuance because his new trial counsel "inherited the case just two months prior and was running an entirely different defense than the prior public defender." But Garrison fails to explain why the "different defense" could not have been developed earlier, such as if it had arisen from newly discovered evidence.

         ¶ 15 In any event, the record shows that prior defense counsel was well aware of the technical aspects of this case. When that counsel first requested and received a continuance on February 3, 2014, he argued that there was "[p]retty complex internet legal service that needs be done before I can even subpoena the materials that I'm going to need to prepare for trial." Later, on May 5, 2014, defense counsel requested and received another continuance because he had "received 10 disks . . . which includes Google search warrant executions, videos, computer forensic information. And that's all information that is beyond the scope of my expertise."

         ¶ 16 At that time, defense counsel also advised the court, "I have a request in for approval for an expert to help me review all of the computer forensics in this case." True, successor counsel later told the court that the expert had not been approved until January. But this delay of over seven months must be attributed to the defense.

         ¶ 17 As well, the record supports the trial court's finding that since the original trial date of April 1, 2014, numerous continuances had already been granted - three of which were at Garrison's request. See People v. Casias, 2012 COA 117, ¶ 21 n.3 (There was no abuse of discretion where "the case had been pending for over two and a half years, " and "the court had already granted defendant two continuances.").

         ¶ 18 Still, Garrison argues that a continuance should have been granted because this was his new counsel's first request. But Garrison cites no authority, nor have we found any in Colorado, that prior continuances are disregarded once new counsel has been appointed. To the contrary, in People in Interest of J.T., 13 P.3d 321, 322 (Colo.App. 2000), the division upheld denial of a continuance, even though new counsel had been appointed "three weeks before, " because "the case had been pending for over six months and had been previously continued twice at [defendant's] request."

         ¶ 19 Undaunted, Garrison argues that a continuance was needed because his new counsel was not prepared for trial. And during the trial, his counsel repeatedly sought a continuance on this basis. But the record belies this argument. It shows that Garrison's counsel "gave an opening statement; examined and cross-examined witnesses" extensively, including the police officers who testified about IP addresses, as discussed below; "preserved objections to evidence; gave significant input on jury instructions; and presented a lengthy closing argument." People v. Alley, 232 P.3d 272, 274 (Colo.App. 2010) (upholding denial of a continuance).

         ¶ 20 For these reasons, we discern no abuse of the court's discretion.

         ¶ 21 Further, even if the trial court abused its discretion, to obtain a reversal, Garrison must also "demonstrate actual prejudice arising from denial of the continuance." People v. Denton, 757 P.2d 637, 638 (Colo.App. 1988). But the prejudice argued by Garrison involves only charges related to the IP testimony:

After the motion to continue was initially denied, the only option left was to present a significantly hampered defense with a blind expert and without the ability to understand the technological intricacies of computer hacking, spoofing and how to find evidence of hacking or spoofing.

         He does not even suggest that the continuance denial caused prejudice related to his convictions for possessing a defaced firearm and felony menacing. Thus, because we have given Garrison a new trial on his convictions related to the IP testimony, as discussed in the next section, no prejudice has occurred.

          ¶ 22 In sum, we discern no basis for reversal in denying Garrison's motion for a continuance.

         III. The Trial Court Abused Its Discretion by Allowing Police Officers, Testifying as Lay Witnesses, to ...

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