[Copyrighted Material Omitted]
Arapahoe County District Court No. 13CR691, Honorable Marilyn
Leonard Antrim, Judge
H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
K. Wilson, Colorado State Public Defender, Dayna Vise, Deputy
State Public Defender, Denver, Colorado, for
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,
did not confer jurisdiction and all charges must be
• 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.
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 courts 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
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:
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
Generals 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
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.
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
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.
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, e.g., Berra v.
Springer & Steinberg, P.C., 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 n.1, 411 P.3d 281 (J. Jones,
J., concurring in part and dissenting in part) ("Simply
put, because he didnt draw the courts attention to the
issue, its not preserved."). And the trial court had no
reason to declare a mistrial after defense counsel expressly
renounced that remedy.
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, 316 P.3d 18 (quoting
People v. Rodriguez, 209 P.3d 1151, 1160
(Colo.App. 2008) ). In other words, waiver
"specifically removes claims from the trial courts
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,
416 P.3d 886; seePeople v. Kessler, 2018
COA 60, ¶ 37, __ P.3d __ (Because "[d]efense counsel
explicitly agreed that the specific evidence at issue was
admissible ..., Kessler, through his counsel, ...