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
...