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People v. Lindsey

Court of Appeals of Colorado, Third Division

July 12, 2018

The People of the State of Colorado, Plaintiff-Appellee,
William Arthur Lindsey, Defendant-Appellant.

          Jefferson County District Court No. 12CR1487 Honorable Todd L. Vriesman, Judge

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

          Ridley, McGreevy & Winocur, PC, Robert T. Fishman, Denver, Colorado, for Defendant-Appellant


          FOX JUDGE.

          ¶ 1 William Arthur Lindsey appeals the judgment of conviction entered on jury verdicts finding him guilty of eight counts of securities fraud and four counts of theft. We vacate and remand the case for proceedings consistent with this opinion.

         I. Background

         ¶ 2 Over a thirteen-month period, Lindsey persuaded six individuals to invest $3 million in new technology that would allegedly use algae-based bioluminescent energy to light signs and panels. Lindsey told his investors he had contracts to sell his lighted signs and panels to the United States Department of Defense, U-Haul, PetSmart, and the Super Bowl. As it turns out, neither the technology nor the contracts ever existed, and Lindsey allegedly spent the money on repaying other investors and on personal expenses.

         ¶ 3 The People charged Lindsey with eight counts of securities fraud and four counts of theft. After lengthy pretrial proceedings that included multiple changes in Lindsey's counsel, a jury convicted him as charged. The judge sentenced Lindsey to twenty-four years in the Department of Corrections' custody.

         II. Competency

         ¶ 4 Lindsey's primary contention is that the trial court erred in refusing to order a competency evaluation where the issue was raised by his counsel's motion before trial. Because the trial court failed to follow the applicable statutory procedure and the trial court is better positioned to first determine if a retrospective competency determination is feasible, we vacate the judgment and remand for such a determination and for further proceedings based on that threshold inquiry.

         A. Applicable Law and Standard of Review

         ¶ 5 We review a trial court's determination of a defendant's competency for an abuse of discretion. People in Interest of W.P., 2013 CO 11, ¶ 10. A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, id., or it misapplies the law, People v. Garrison, 2017 COA 107, ¶ 30. Whether the court should have ordered a competency evaluation is a question of law we review de novo. See W.P., ¶ 10.

         ¶ 6 The People's primary argument on appeal is that the standard to determine competency is whether the judge has a "reason to believe" the defendant is incompetent. Lindsey responds that the applicable statute provides different ways to raise competency - under section 16-8.5-102(2)(a), C.R.S. 2017, the judge may raise competency if he has reason to believe the defendant is incompetent, or under section 16-8.5-102(2)(b), the defense or prosecution, having reason to believe the defendant is incompetent, may raise competency. The plain language of section 16-8.5-102(2)(b) does not require that the judge have a reason to believe the defendant is incompetent. See People v. Nagi, 2014 COA 12, ¶¶ 9, 14 (using "reason to believe" as the applicable standard in a case where the judge raised the issue of the defendant's competency after the defendant chose to proceed pro se), aff'd, 2017 CO 12. But, as discussed below - and as the prosecution conceded at trial - the motion the People now challenge on appeal was facially valid and raised Lindsey's competency.

         ¶ 7 A defendant is incompetent to proceed if, "as a result of a mental disability or developmental disability," he lacks "sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding in order to assist in the defense, or . . . does not have a rational and factual understanding of the criminal proceedings." § 16-8.5-101(11), C.R.S. 2017.

         ¶ 8 When the question of a defendant's competency is raised, the court makes a preliminary finding of competency. § 16-8.5-103(1), C.R.S. 2017. The preliminary finding becomes a final determination unless a party objects within fourteen days. Id. If the court lacks the information necessary to make a preliminary finding of competency or incompetency, or if either party objects to the court's preliminary finding, the court must order a competency evaluation. § 16-8.5-103(2); W.P., ¶ 16 (discussing the 2008 statutory amendments that now "mandate[] that a court order a competency evaluation upon either party's timely objection to its preliminary finding of competency or incompetency").

         B. Additional Background

         ¶ 9 The attorney who ultimately represented Lindsey at trial, David G. Tyler, entered his appearance in the case in May 2014, just days before Lindsey's trial setting. The court granted Tyler a continuance to allow him time to prepare. At the end of the continuation period, Tyler filed a motion to withdraw, which the court denied. With Lindsey's trial set to start on April 20, Tyler filed the competency motion at issue on April 16, 2015.

          ¶ 10 The motion alleged that Lindsey displayed "irrational" behavior and that Lindsey was unable to appreciate the nature and consequences of the trial and could not assist Tyler in defending him. Tyler later added that on numerous occasions

I have repeatedly been assured with regard to this matter about testimony, witnesses, the furnishing of new witnesses, money for the hiring of experts, expert names, addresses, ...

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