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People v. Tee

Court of Appeals of Colorado, Third Division

June 14, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Mike Tee, Defendant-Appellant.

          Arapahoe County District Court No. 13CR691 Honorable Marilyn Leonard Antrim, Judge.

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Douglas K. Wilson, Colorado State Public Defender, Dayna Vise, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.


          WEBB JUDGE.

         ¶ 1 After hearing evidence involving identity theft and insurance fraud, a jury convicted Mike Tee of multiple charges, including two counts of attempting to influence a public servant. Specifically, he contends that

. because the indictment received by the district court did not contain the signature of the grand jury foreperson, it did not confer jurisdiction and all charges must be dismissed;
. because two jurors engaged in predeliberation, he is entitled to a new trial;
. because insufficient evidence supported the two convictions for attempting to influence a public servant, these convictions must be vacated; and
. the mittimus must be corrected to conform to the sentence the trial court announced at the sentencing hearing, despite a lengthier sentence that the court imposed later.

         ¶ 2 The Attorney General concedes, and we agree, that the mittimus must be corrected. As to the other three contentions, we conclude that the signature of the foreperson need not be provided to the district court; defense counsel waived any error as to predeliberation; and the evidence was sufficient to support one count of attempting to influence a public servant, but insufficient as to the other count. Therefore, we vacate the judgment as to one count of attempting to influence a public servant (Count 24) and remand to correct the mittimus.

         I. The Grand Jury Indictment Conferred Jurisdiction on the Arapahoe County District Court

         ¶ 3 Tee first contends "the indictment returned by the grand jury was not signed by the foreman and, therefore, failed to invoke the court's jurisdiction because it did not comply with the substantial requirements of [section] 16-5-201, " C.R.S. 2017. That section provides: "Every indictment shall be signed by the foreman of the grand jury returning it and by the prosecuting attorney, his or her assistant, or his or her deputy." Tee also relies on Crim. P. 7(a)(1): "An indictment shall be a written statement presented in open court by a grand jury to the district court which charges the commission of any crime by an alleged offender." He does not challenge the indictment for failure to satisfy any of the requisites set out in Crim. P. 7(a)(2).

         ¶ 4 Tee correctly points out that the appellate record initially certified included pages one through thirty-five of the indictment, which ended with the following:

The 2012-2013 Colorado Statewide Grand Jury presents the Indictment contained within and the same is hereby ORDERED FILED this 28 day of March, 2013.
Pursuant to § 13-73-107, C.R.S., the Court designates Arapahoe County, Colorado as the county of venue for the purposes of trial.
Arrest Warrants are Issued for:
Mike Tee . . . .

         The signature of the foreperson was not included.

         ¶ 5 According to the Attorney General, this occurred because the district court for the City and County of Denver, where the grand jury sat, ordered that all information "that might identify Statewide Grand Jurors shall be deemed confidential, not to be released to anyone other than the prosecutors and/or investigators with the Attorney General's Office without written authorization from the Court." See § 13-73-103, C.R.S. 2017 ("The court . . . shall enter an order to preserve the confidentiality of all information that might identify state grand jurors when reasonably necessary to protect the state grand jury process or the security of the state grand jurors.").

         ¶ 6 Still, we ordered the Arapahoe County District Court to supplement the record - under seal - with a complete indictment. The court clerk responded with an affidavit attesting that the Denver District Court had sent only these pages.[1]

         ¶ 7 Tee clarified at oral argument that the problem is not whether the foreperson signed the indictment, but whether the allegedly incomplete copy of the indictment filed in the Arapahoe County District Court gave that court jurisdiction. We discern no jurisdictional defect for two reasons.

         ¶ 8 First, "a grand jury indictment constitutes official action accusing an individual of a specific violation of the law, for which the individual may be tried and subsequently convicted." People v. Thompson, 181 P.3d 1143, 1148 (Colo. 2008); see § 16-1-104(11), C.R.S. 2017 (defining "indictment" as "a written statement, presented by a grand jury to the district court, which charges the commission of a crime by an alleged offender"). And under section 13-73-107(1), C.R.S. 2017, "[a]ny indictment by a state grand jury shall be returned to the chief judge who is supervising the statewide grand jury without any designation of venue." See § 13-73-105, C.R.S. 2017 ("Judicial supervision of the state grand jury shall be maintained by the chief judge who issued the order impaneling such grand jury, and all indictments . . . made by such grand jury shall be returned to that judge."). Thus, the requirement in Crim. P. 7(a)(1) that the indictment be "presented in open court by a grand jury to the district court which charges the commission of any crime" (emphasis added) applied to the Denver District Court.

         ¶ 9 Second, Tee cites no authority, nor have we found any, applying the requirements of Crim. P. 7(a)(1) to the district court that is designated "as the county of venue for the purposes of trial" after the statewide grand jury indictment has been returned. And section 13-73-107(1), which provides that after an indictment is returned, "the chief judge shall, by order, designate any county in the state as the county of venue for the purpose of trial, " suggests otherwise.

         ¶ 10 In sum, we conclude that the Arapahoe County District Court had jurisdiction.

         II. Defense Counsel Waived a New Trial Based on Possible Predeliberation by Two Jurors

         ¶ 11 Tee next contends the trial court "failed to adequately inquire into or address the fact the jurors were predeliberating." He asserts that predeliberation constitutes either structural error or a denial of due process subject to constitutional harmless error review. Under either standard, he continues, all of the convictions must be reversed and the case remanded for a new trial.

         ¶ 12 The predeliberation concern arose when a victim advocate told the prosecutor, who then informed the trial court, that she had overheard two jurors discussing the case at lunch. The court took testimony from the victim advocate in the presence of the prosecutor and defense counsel. Next, the court questioned these two jurors separately, also with both counsel present. Then the court read the burden of proof instruction to the entire jury.

         ¶ 13 According to the Attorney General, we should not review this contention because defense counsel waived it. Tee responds that waiver is inapplicable because "[t]he error was brought to the attention of the court by the prosecution and the trial court had the opportunity to address the issue" But this response deals with preservation, not waiver See, eg, Berra v Springer & Steinberg, PC, 251 P.3d 567, 570 (Colo App 2010) ("[T]o preserve the issue for appeal all that was needed was that the issue be brought to the attention of the trial court and that the court be given an opportunity to rule on it"); see also People v Kadell, 2017 COA 124, ¶ 43 n1 (J Jones, J, concurring in part and dissenting in part) ("Simply put, because he didn't draw the court's attention to the issue, it's not preserved."). And the trial court had no reason to declare a mistrial after defense counsel expressly renounced that remedy.

         A. Law

         ¶ 14 Three familiar principles guide waiver analysis in criminal cases.

. A "'waived' claim of error presents nothing for an appellate court to review." People v. Bryant, 2013 COA 28, ¶ 13 n.2 (quoting People v. Rodriguez, 209 P.3d 1151, 1160 (Colo.App. 2008)). In other words, waiver "specifically removes claims from the trial court's consideration." Id. (citing Rodriguez, 209 P.3d at 1160).
. Still, waiver requires "that the defendant intentionally relinquished a known right or privilege." People v. Smith, 2018 CO 33, ¶ 17; see People v. Kessler, 2018 COA 60, ¶ 37 (Because "[d]efense counsel explicitly agreed that the specific evidence at issue was admissible . . ., Kessler, through his counsel, intentionally waived the particular point raised on appeal.").
. And despite this high bar, "even fundamental rights can be waived, regardless of whether the deprivation thereof would otherwise constitute structural error." Stackhouse v. People, 2015 CO 48, ¶ 8 (courtroom closure).

         ¶ 15 The Supreme Court has identified factors limiting waiver. "Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, ...

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