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
Douglas 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, 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
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 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 . . . .
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
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
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, "
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, 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.
14 Three familiar principles guide waiver analysis in
. 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
. 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