County District Court No. 15CR1862 Honorable Francis C.
Wasserman, Judge Honorable Thomas R. Ensor, Judge
J. Weiser, Attorney General, Carmen Moraleda, Senior
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Meredith E. Osborne,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Thomas T. Flynn, appeals his judgment of
conviction entered on jury verdicts finding him guilty of
menacing, vehicular eluding, reckless endangerment, failure
to stop at a red light, and speeding. We affirm.
2 In 2015, William Garibay was driving home from work when he
noticed a Cadillac driving in front of him in the left lane.
When Garibay's car approached the Cadillac, the driver of
the Cadillac stepped on his brakes, causing Garibay to brake
abruptly. The Cadillac then moved into the right lane, and
its driver started yelling profanities at Garibay. The driver
held a pistol across his chest and pointed it at Garibay.
Garibay called 911, provided the dispatcher with the
Cadillac's temporary license plate number, and attempted
to follow the vehicle until he lost sight of it.
3 Garibay met with a responding police officer and provided a
physical description of the driver, indicating he would be
able to recognize the driver. In the meantime, a police
officer located the Cadillac and gave chase, but the Cadillac
driver eluded the officer. During the investigation, police
determined that the temporary tag was associated not with a
Cadillac, but rather with an older model Buick sedan
registered to Flynn's father. Garibay then identified
Flynn in a photographic array as the driver of the Cadillac.
The police never located the Cadillac or the gun. A jury
found Flynn guilty of menacing, vehicular eluding, reckless
endangerment, failure to stop at a red light, and speeding.
Flynn now appeals the convictions.
4 Flynn contends that a new trial is required because the
trial court erred by (1) denying his motion to continue; (2)
determining that no due process violation resulted from the
prosecution's failure to disclose certain evidence; and
(3) giving instructions to the jury that lowered the
prosecution's burden of proof. We address and reject each
contention in turn.
Motion to Continue
5 Flynn first argues that the trial court erred in denying
his motion to continue his trial. Because he sought a
continuance to obtain substitute defense counsel, Flynn
argues that the trial court's denial of his motion
violated his Sixth Amendment rights. We disagree.
6 At the pretrial conference, one week before trial,
Flynn's court-appointed attorney requested a continuance
of trial, noting Flynn's request to substitute counsel:
MS. LANZEN: The other thing that Mr. Flynn had noted to me is
that it's his intent to hire counsel of his choice. He
has been working and saving money to get a retainer to hire
an attorney. It was his hope that he would have that attorney
today. However, he needed a little more time. He said he was
going to go over to Harvey Steinberg's office afterwards
to see if he can set up the retainer.
We would ask the Court to vacate the jury trial.
7 The trial court denied this motion, in part because the
request was "very last minute" and there was
"no indication that there's other counsel who is
actually going to enter his or her appearance in this
matter." The court described the motion as a tactic to
8 On the first day of trial, defense counsel renewed her
request for a continuance, again noting that Flynn wanted to
hire a private attorney for trial:
MS. LANZEN: He originally hired an attorney. That attorney
had to withdraw. My office was appointed. And then after some
limited contact with Mr. Flynn, he had made the decision to
hire an attorney. He just didn't have the money. . . .
He said he had contacted Howard - Harvey Steinberg and wanted
to retain him to represent him at the trial and so wanted me
to ask the Court to continue this so that he could have the
attorney of his choice.
9 The court again denied the request. The court noted that
"[h]ad another attorney entered or even been present
today, I might have considered [a continuance]."
Standard of Review
10 "A motion for a continuance falls within 'the
sound discretion of the trial court.'" People v.
Brown, 2014 CO 25, ¶ 19 (quoting People v.
Hampton, 758 P.2d 1344, 1353 (Colo. 1988)). Thus, we
review the trial court's denial of a motion for a
continuance for an abuse of discretion. Id. In
reviewing the trial court's findings of fact, we will
defer to such findings "so long as [they] are supported
by evidence in the record." Id. at ¶ 26.
11 The Sixth Amendment affords criminal defendants the right
to be represented by counsel of their choice. U.S. Const.
amend. VI; see Rodriguez v. Dist. Court, 719 P.2d
699, 705 (Colo. 1986). This right is entitled to "great
deference." Rodriguez, 719 P.2d at 705.
Nevertheless, the right is not absolute and must in some
cases yield when "fundamental considerations other than
a defendant's interest in retaining a particular attorney
are deemed of controlling significance." Id. at
12 In Brown, the supreme court set forth an
eleven-factor test for trial courts to use when analyzing a
request for a continuance to substitute defense counsel.
Under Brown, ¶ 24, a trial court must consider
1. the defendant's actions surrounding the request and
apparent motive for making the request;
2. the availability of chosen counsel;
3. the length of continuance necessary to accommodate chosen
4. the potential prejudice of a delay to the prosecution
beyond mere inconvenience;
5. the inconvenience to witnesses;
6. the age of the case, both in the judicial system and from
the date ...