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People v. Palmer

Court of Appeals of Colorado, Fifth Division

March 22, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Danielle Palmer, Defendant-Appellant.

          Arapahoe County District Court No. 15CR202 Honorable Donald W. Marshall, Judge

          Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

          OPINION

          WELLING, JUDGE

         ¶ 1 The defendant, Danielle Palmer, was charged by information with first degree arson. After the trial was already underway, the trial court granted the prosecution's motion to amend the information to add a crime of violence designation.

         ¶ 2 The amended information alleged that Palmer committed first degree arson by means of a deadly weapon. By virtue of the amendment, Palmer faced a longer prison sentence if convicted.

         ¶ 3 Also, during trial it came to light that the People had failed to disclose the reports of two fire investigators. This discovery violation was discovered after one of the investigators had testified but before the other had. Palmer moved for a mistrial. The trial court denied the motion, but imposed lesser sanctions.

         ¶ 4 On appeal, Palmer contends that the trial court erred by granting the People's motion to amend the information during the course of trial and by denying her motion for a mistrial. We agree with her first contention, but disagree with her second. With respect to the first issue, we conclude that the addition of the crime of violence designation was a substantive amendment to the information and, therefore, pursuant to Crim. P. 7(e), could not be granted after the start of trial. With respect to the second issue, we conclude that the trial court did not abuse its discretion in imposing less severe sanctions than granting Palmer's motion for a mistrial. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

         I. Background

         ¶ 5 When Palmer found out that the man she had been dating was having sex with another woman, she set fire to a bag of his things outside the front door of his apartment. The fire spread from the bag, and soon the entire apartment complex was ablaze. As a result of the fire, Palmer was charged with five counts of attempted first degree murder and one count of first degree arson.

         ¶ 6 The jury acquitted Palmer of attempted murder but convicted her of first degree arson and the lesser nonincluded offense of fourth degree arson. The jury also found that first degree arson was a crime of violence because Palmer used a deadly weapon - a lighter and lighter fluid. The trial court sentenced Palmer to sixteen years in the custody of the Department of Corrections (DOC) for first degree arson as a crime of violence.[1]

         II. Analysis

         ¶ 7 Palmer raises two arguments on appeal. First, she contends that the trial court abused its discretion by allowing the prosecutor to amend the information. Second, she argues that the trial court should have granted her motion for a mistrial because the prosecution failed to timely disclose two fire investigators' reports. We agree with her first contention but disagree with her second.

         A. Amendment to Information

         ¶ 8 The attempted murder and first degree arson offenses were not originally charged as crimes of violence. The day before trial, however, the prosecutor moved to amend the information to designate each offense as a crime of violence. The trial court initially denied the motion. But on the first day of trial - after the jury had been sworn, opening statements had been delivered, and three witnesses had testified - the court sua sponte reversed its earlier ruling and allowed the prosecutor to amend the information to include the crime of violence designations.

         ¶ 9 Subject to an exception not applicable here, to convict a defendant for a crime of violence, the People must allege, in a separate count of the information, that they are pursuing the charge as a crime of violence.[2] § 18-1.3-406(3), C.R.S. 2017. The original information in this case did not include a crime of violence designation, so to pursue the arson as a crime of violence, the prosecutor needed to amend the information.

         ¶ 10 Under Crim. P. 7(e),

[t]he Court may permit an information to be amended as to form or substance at any time prior to trial; the court may permit it to be amended as to form at any time before the verdict or finding if no additional or different offense is charged and ...

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