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Bondsteel v. People

Supreme Court of Colorado, En Banc

April 22, 2019

James Jud Bondsteel, Petitioner
v.
The People of the State of Colorado. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 11CA1784

          Attorneys for Petitioner: Megan A. Ring, Public Defender Andrew C. Heher, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Philip J. Weiser, Attorney General William G. Kozeliski, Assistant Attorney General Denver, Colorado

          OPINION

          GABRIEL JUSTICE

         ¶1 This case requires us to decide whether a criminal defendant's failure to renew at trial a pretrial objection to the prosecution's motion to join two separately filed cases waives the defendant's ability to challenge such joinder on appeal and, if not, whether the cases were properly joined here.[1]

         ¶2 We conclude that, to the extent People v. Barker, 501 P.2d 1041 (Colo. 1972), and People v. Aalbu, 696 P.2d 796 (Colo. 1985), required a defendant to renew at trial a pretrial objection to joinder or motion to sever, those cases are no longer good law because the renewal obligation that they espoused is inconsistent with the current rules of criminal procedure. We thus further conclude that defendant James Jud Bondsteel properly preserved his objection to the joinder of the two cases filed against him.

         ¶3 Turning then to the merits, we conclude that the trial court properly exercised its discretion in joining the cases at issue because the record supports the court's findings that the joinder of the two cases satisfied the requirements of Crim. P. 8(a)(2) and Crim. P. 13 and the joinder did not prejudice Bondsteel.

         ¶4 We therefore affirm the judgment of the division below.

         I. Facts and Procedural History

         ¶5 As noted above, this case involves the joinder of two separately filed cases.

         ¶6 The first case, "the Motorcycle Case," involved three incidents in which a male motorcyclist wearing a leather jacket and a motorcycle helmet that largely concealed his face approached women who were driving or parked in their cars. In each incident, the assailant showed a gun, directed the victims to move or remove parts of their clothing and expose themselves to him, and demanded that the victims give him some of their belongings. At the time of these incidents, none of the victims identified Bondsteel as the assailant.

         ¶7 In the second case, "the Signal Mountain Trail Case," a man on foot attacked two women on a hiking trail. The man was dressed in full camouflage and a long parka, and his face was covered by a balaclava. He accosted the women, threatening them with a knife and cutting the hand and arm of one of them. In the course of this attack, the assailant had one of the women on the ground with his knife to her throat, and she asked why he was doing this. He responded, "Because it's fun," and then lifted the woman's shirt and opened her shorts and looked down them. The women managed to escape after hitting the man in the head with a walking stick and rocks, and, in separate line-ups conducted later, they both identified Bondsteel as their attacker. In addition, the DNA profile of a sample recovered from one of the women's backpacks matched a sample taken from Bondsteel.

         ¶8 Based on the foregoing, the People charged Bondsteel in the Signal Mountain Trail Case with multiple offenses, including second-degree kidnapping, attempted sexual assault, assault, and menacing.

         ¶9 Several months later, Bondsteel's then-wife (T.B.) informed the police that she had seen Bondsteel with suspicious items, including a white clutch purse that she had never seen before. She further stated that Bondsteel had informed her that (1) "he had robbed a couple of girls for fun" and (2) he had used a gun to make the women expose themselves to him. T.B. also told the police that Bondsteel had shown her a press release concerning the Motorcycle Case and said, "This is me they're talking about." He explained that he would pull out a handgun and tell the victims to give him their purses. He would then threaten them and ask them to flash him either by lifting their shirts or hiking up their skirts. T.B. then said that Bondsteel had told her that he had to get rid of his motorcycle because the police would be looking for it and that he traded it for a street bike, a fact that the police were later able to confirm. Finally, when T.B. heard that the assailant in the Signal Mountain Trail Case had said that he had committed the assault "because it was fun," T.B. stated that this was a "tag line" of Bondsteel's. According to T.B., "He only does it if it's fun. It's not worth doing if it's not fun. That's just James."

         ¶10 Consistent with the foregoing, T.B. subsequently provided to the police letters that Bondsteel had written her in which he apologized for his involvement in the crimes at issue and asked for her help in establishing an alibi for the Signal Mountain Trail Case. ¶11 Based on this and other evidence that the police had gathered, Bondsteel was charged in the Motorcycle Case with, among other things, sexual assault, aggravated robbery, and unlawful sexual contact.

         ¶12 The matters proceeded toward trial, and, in pretrial proceedings in the Signal Mountain Trail Case, the People moved pursuant to CRE 404(b) to introduce evidence of the three alleged incidents for which Bondsteel was charged in the Motorcycle Case. The People contended that such evidence was admissible to prove Bondsteel's motive, intent, and modus operandi in committing the assaults at issue in the Signal Mountain Trail Case. The court granted the People's motion, and the People then orally moved to consolidate the two cases for trial. Over Bondsteel's objection, the court granted that motion from the bench.

         ¶13 At a subsequent pretrial hearing, the court and counsel further discussed Bondsteel's objection to the joinder of the two cases. Renewing his objection, Bondsteel argued that, even if evidence from the Motorcycle Case would be admissible in the Signal Mountain Trail Case, the People had presented no specific evidentiary hypothesis for how evidence from the Signal Mountain Trail Case would be admissible in the Motorcycle Case. Bondsteel contended to the contrary that evidence from the Signal Mountain Trail Case would not, in fact, be admissible in the Motorcycle Case. Specifically, he asserted that not only were the incidents dissimilar, but also the Signal Mountain Trail evidence would not show motive or intent and would serve no purpose other than to paint Bondsteel as a person of bad character. Bondsteel further argued that joinder would provide the prosecution with identification evidence that was otherwise lacking in the Motorcycle Case (because jurors would simply assume identification in that case based on the arguably stronger identification evidence in the Signal Mountain Trail Case). And Bondsteel contended that joinder would prevent him from presenting different defenses in each case, namely, a motive defense in the Signal Mountain Trail Case and an identity defense in the Motorcycle Case. For all of these reasons, Bondsteel contended that joinder would be prejudicial.

         ¶14 The People responded that evidence from the Signal Mountain Trail Case would be admissible in the Motorcycle Case pursuant to CRE 404(b) to show common plan, scheme, identification, and motive because the incidents had substantial similarities. The People further noted that joinder was proper because the investigations of the respective cases were intertwined and could not readily be separated.

         ¶15 The trial court ultimately agreed with the People and confirmed its decision to consolidate the cases for trial. In support of this ruling, the court noted that it perceived a great deal of similarity among the incidents underlying the two cases. For example, all of the incidents occurred within a relatively short time span, and each involved an attack on one or two women in an "open air" but isolated place in which the assailant displayed or used a weapon. The court further observed that, in light of the evidence, the jury could properly determine that the pattern of conduct reflected in the Motorcycle Case carried over into the Signal Mountain Trail Case. And the court perceived no antagonistic defenses in the two cases.

         ¶16 The consolidated case proceeded to trial, and, at trial, Bondsteel did not renew his pretrial objections to the joinder of the two cases. A jury ultimately convicted Bondsteel on eighteen of the twenty-three counts, including most but not all of the counts charged in the Signal Mountain Trail Case and many but not all of the counts charged in the Motorcycle Case. In addition, one conviction in the Signal Mountain Trail Case was for a lesser-included offense.

         ¶17 Bondsteel then appealed, arguing, as pertinent here, that the trial court had committed reversible error when it joined the two cases. In a unanimous, published opinion, a court of appeals division affirmed the trial court in all respects except as to one conviction in the Signal Mountain Trail Case, which the division reversed based on insufficiency of the evidence. People v. Bondsteel, 2015 COA 165, ¶ 1, P.3d . The division determined, pursuant to Aalbu, that because Bondsteel did not renew at trial his objection to the People's pretrial joinder motion, his objection to the joinder of the cases was, at best, unpreserved. Id. at ¶ 27. Because, however, case law decided after Barker and Aalbu had allowed for plain error review in cases of forfeiture (as distinct from waiver), and because some case law decided since Barker and Aalbu had indicated that a defendant is not required to renew an objection to consolidation, the division chose to review Bondsteel's misjoinder argument on the merits, ultimately concluding that the trial court had not reversibly erred in joining the cases for trial. Id. at ¶¶ 29-31, 56. ¶18 Bondsteel then petitioned this court for certiorari review, and we granted his petition.

         II. Analysis

         ¶19 We begin by addressing whether Bondsteel's failure to renew at trial his pretrial objection to the joinder of the Motorcycle Case and the Signal Mountain Trail Case waived his ability to challenge on appeal the joinder of those cases. After concluding that Bondsteel was not required to renew his pretrial objection and that he had therefore preserved that objection, we proceed to the merits and conclude that, on the facts of this case, the trial court did not reversibly err in joining the cases.

         A. Preservation of Objection to Joinder

         ¶20 Bondsteel first contends that he did not waive his right to appeal the trial court's joinder determination when he did not renew at trial his pretrial objection to such joinder. We agree.

         ¶21 We review de novo the legal question of whether a defendant waives an objection to joinder of two cases by not renewing at trial a pretrial objection to such joinder. See People v. Bergerud, 223 P.3d 686, 693 (Colo. 2010) (noting that the effective waiver of counsel presents a mixed question of fact and law that an appellate court reviews de novo); People v. Blehm, 983 P.2d 779, 792 n.9 (Colo. 1999) (noting with respect to a defendant's waiver of the right to testify at trial that the trial court's factual ...


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